Hansard -- Volume 19, Number 22 -- Monday, May 29, 2000

2000 Legislative Session: 4th Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, MAY 29, 2000

Afternoon Sitting

Volume 19, Number 22

[ Page 15867 ]

The House met at 2:08 p.m.

Prayers.

Hon. J. Pullinger: It's my pleasure today to introduce three people from my riding: two students and a teacher from Cowichan Secondary School. These two students have won the provincials and are headed to Edmonton on June 3 to compete in the Canadian finals of the Student Auto Skills Challenge, where I am sure they will be successful, given the track record of Cowichan high school. Daniel Kimmerly, Neil Myhre and their teacher Tom Gavaghan are here to visit the Legislature. I would ask all members of the House to help me congratulate them and welcome them here today.

[1410]

M. de Jong: Hon. Speaker, I have a request and then an introduction. This week Canadians and Quebeckers are commemorating the passing of an individual whose influence, I think it can be said, extended far beyond the boards of any rink he ever played in, and that is the passing of Maurice "Rocket" Richard. I never saw him play, but I think it's a testament to his reputation as a competitor over 18 years in the NHL and, after his retirement, as an ambassador for Canada's national game that he garnered a reputation that went well beyond the borders of Montreal and Quebec.

I wonder if it would be appropriate for this House, via your good offices, to send letters of condolences to his family in Quebec.

The Speaker: Thank you, member; I'd be pleased to take those comments and make an appropriate response.

M. de Jong: There is a delegation in Vancouver -- and my colleague for Port Moody-Burnaby Mountain will make some additional introductions -- at a conference studying the Sikh religion. Dr. Pritam Singh, Dr. Gurdashan Dhillon, Dr. Balwant Dhillon, Dr. Sulakhan Singh, Dr. Sangat Singh and Col. Parminder Singh are here in the gallery, along with several others. Also a friend of mine, Sukhminder Cheema, is visiting the precincts today. I hope members will make them feel welcome.

C. Clark: I am happy to add to my colleague's introduction of the members who are visiting from India. They are being hosted by some local folks: Satnam Johal, first among them, Sarbjit Bains, Bahadur Sandhu and Manjit Dhami are all joining us as well. I hope the House will make them all welcome.

Hon. I. Waddell: I'd like to follow up the remarks by the hon. member for Matsqui. Often it is not until someone dies that we Canadians realize the depth of talent we have in this vast country. I'd like the House to recognize and mourn the passing of two Canadians from vastly different parts of Canada and to celebrate their long careers.

As was mentioned by the hon. member for Matsqui, Rocket Richard, who is now lying in state in Montreal, was perhaps Canada's greatest hockey player. A couple of years ago, when we took our Olympic bid team from B.C. down to Toronto to compete against Quebec City and Calgary to be Canada's choice for the Winter Games, there was a reception that the former Premier and I went to. We met the Pocket Rocket, Henri Richard, and we were quite talkative when speaking to him. Then behind the Pocket Rocket was the great man himself, Rocket Richard. Everybody around was speechless at seeing the Rocket.

The eyes were gentle, and he was very cheerful and great in greeting us. It was like seeing a Canadian icon. But, you know, the eyes were not always gentle, because when he bore down on an NHL goalie with those eyes and those legs and that stick, he really was uniquely Canadian and uniquely Québécois.

Ici en Colombie Britannique, nous disons au Québec et aux Québécois: "Merci pour Richard." As they said in the Forum, the old chant was: "Vas-y Maurice, vas-y Maurice." Thank you so much for a life that was really superb and very Canadian.

While I'm up I also want to mention the passing of E. Davie Fulton, another great Canadian from another part of this vast country. He was an MP for Kamloops for many years, the Attorney General of Canada and a Supreme Court judge. He was a brilliant man who had his tough times -- but he overcame them -- and a wonderful life.

I once saw Judge Fulton at the latter part of his career, at a meeting of the International Joint Commission. There were American Congressmen there and Canadian MPs. An American official got up and gave a kind of stammering speech. They called upon a Canadian to get up, and Mr. Fulton, who was well past 75 then, got up and gave the most brilliant speech. We were all so proud of him, from all parties. One of the Americans said: "You should have made that guy the Prime Minister." And he almost did it; he was almost the prime minister from British Columbia. His was a brilliant career and a sad loss, but mitigated by the fact that he served this province and this country, in his way, very well.

C. Hansen: Just before the House convened this afternoon, I had the pleasure of meeting with 40 grade 4 students from Crofton House School in Vancouver, their teacher Ms. Magrath and some of the parents who are accompanying them. I must say they had great questions, a great day for being here and an excellent tour of the buildings. I hope the House will join me in making them very welcome.

[1415]

Oral Questions

BALANCED-BUDGET LEGISLATION

C. Clark: Well, the Premier had a conversion on the road to Kamloops on the weekend. He's decided he wants to balance the budget in British Columbia. You know, it would be laughable enough, coming from this Premier who has sat and roundly supported nine consecutive deficit budgets. But it is even more preposterous in light of the comments that he made in the most recent BCGEU newsletter, where he says that he's just going to throw out the window any public sector wage negotiating guidelines and that if you go to the table, you'll be able to get whatever you bargain for.

How is it the Premier thinks that British Columbians are going to believe he's serious about balancing the budget in British Columbia when he's already opening the vault to his pals in the BCGEU?

Hon. P. Ramsey: It's good to see the opposition's interest in the Premier's speech in Kamloops. I'd say that balanced-

[ Page 15868 ]

budget legislation is entirely consistent with the Budget 2000 as any . . . . We have committed to being open and transparent. We've laid out a five-year plan, and we've said: "This has to meet the highest standards of . . . . It has to meet the standards of fiscal responsibility."

Interjections.

The Speaker: Order, members.

Hon. P. Ramsey: But we also have to deliver on a balanced approach to maintain services while cutting taxes and while making sure that public sector workers have a chance to bargain freely and collectively. That's the balanced approach we need, hon. Speaker.

The Speaker: The member for Port Moody-Burnaby Mountain with a supplemental question.

C. Clark: Well, there's something this government is absolutely consistent about, because they are always consistently misleading British Columbians -- every opportunity that they get. This Premier, when the TV cameras are on, talks about how he wants to balance the budget. But when he goes and talks to the BCGEU, not only does he say he's going to throw out public sector wage guidelines, but he starts speculating about how they might this time get 4-4-and-4. That's 12 percent over three years. How does the Premier think he is going balance a budget in this province when he's already openly speculating about 12 percent wage increases for public sector employees?

Hon. U. Dosanjh: Unlike the opposition, we on this side believe in free collective bargaining.

Interjections.

The Speaker: Order, members.

Hon. U. Dosanjh: Yes, I gave an interview to the BCGEU, and I have said this publicly. I in fact said this on Rafe Mair's show the other day, a week or so ago. I said to people who want free collective bargaining, which we support, that if you are a public sector union, you would bargain hard on behalf of your members. We would bargain hard on behalf of the people of British Columbia. The unions might get 4-4-4; they might get zero-zero-zero. But there would be a hard bargain driven.

The Speaker: The member for Port Moody-Burnaby Mountain with a further supplemental.

C. Clark: I can tell you that nothing comes free with this government. The 4-4-4 -- 12 percent over three years for public sector wages -- is going to kill any opportunity for a balanced budget.

But you know, there's a whole other . . . . Let's look at other comments that the Premier made in his interview. He also goes on to say in the interview that . . . .

Sorry about that. Forgive me, hon. Speaker.

[1420]

Interjections.

The Speaker: Members.

C. Clark: He also goes on to say in the interview -- I've found it now -- that he went and looked at the budget for Parks, and he found out that it wasn't quite enough: "I discovered that once the budget was made public, that the Parks area is underfunded." It's sort of like how he discovered that the cuts to independent schools happened after the budget was presented.

So tell me, hon. Premier: how do you expect to balance the budget when you apparently don't even read it before it's introduced to this House?

Interjections.

The Speaker: Order, members.

Hon. U. Dosanjh: Hon. Speaker, it's really a pity that they have to go to my interview with BCGEU to pick out anything to talk about in this House. It really shows that this opposition is becoming lazier by the day. That was before the budget was introduced.

The Speaker: Hon. member for Matsqui.

M. de Jong: I guess the question is: how do you really gauge the sincerity of what the Premier and the NDP are now saying around the issue of balanced budgets? I think what you do is go back and see what they've said in the past -- members of the NDP caucus, for example. The member for Kootenay said on May 3 of last year that balanced-budget laws are not only shameful but disgraceful. That's what she said on May 3. Then you go to the cabinet, because the present Minister of Employment and Investment described balanced-budget laws as "a crock." So pity the Premier, who is now caught between a crock and a hard place, Mr. Speaker.

Will the Premier explain why British Columbians should have any faith in his supposed new conversion to the cause of balanced budget, when his own caucus says it's a crock, a disgrace and shameful?

The Speaker: The Premier.

Hon. U. Dosanjh: Hon. Speaker, when I became the Premier, we dealt with many issues. One of the issues we dealt with was the budget transparency issue. We introduced the toughest budget transparency legislation in the country. Hon. Speaker, guess what. We're going to pass it.

After the next election it will continue, because we will be the government. The opposition will have their day, and we will defeat them in the next election. There's no question about that in my mind.

But let me continue. The second part of that has to be that we need to remember, ourselves, that balancing the budget has been a New Democratic value for a long, long time.

Interjections.

Hon. U. Dosanjh: Hon. Speaker, the opposition obviously doesn't want to listen to this.

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Interjections.

The Speaker: Members, question time is expiring. Premier.

Hon. U. Dosanjh: Tommy Douglas balanced all his budgets; Allan Blakeney balanced seven budgets; Roy Romanow did it; Gary Doer did it. I no longer want to owe money to the banks. We want to spend money on the people of British Columbia.

[1425]

The Speaker: The member for Matsqui has a supplemental question.

M. de Jong: Well, it's become a practice in this House for the Premier to be blindsided by members of his own caucus; God forbid that it should happen again. We're from the opposition, and we're here to help.

I want to go to the Minister of Employment and Investment, Mr. Speaker. He's in charge of a ministry that commands a multimillion-dollar budget. It sounds to me like the orders from the Premier's Office are changing. I'm wondering if the notion of having to live statutorily within a budget is still a concept that he believes is worthy of the description he gave it, which is "a crock."

Hon. G. Wilson: The members opposite should know that as a member of the executive council, one always lives by the law. If the law is there to provide a balance, then one may do it.

I would point out, however, that there are some pitfalls and dangers to some who have been empowered by that balanced-budget legislation. When the now Leader of the Official Opposition was bound by that very same law as mayor of the city of Vancouver, his response was not to curb spending but to put up taxes. His tax increases at that time to balance his budget were second to none of any mayor that Vancouver has seen. So it's not the panacea that the members opposite might think it is.

G. Farrell-Collins: Hon. Speaker, I will put the Leader of the Opposition's record up against anyone on that side of the House anytime, anywhere. If the Premier has the guts to do it, we can call an election and start today.

You don't even have to go to the BCGEU to find out about the government's hypocrisy. You can just read their own documents. We've received a chart from PSEC that says -- and I'll show you in a minute -- that the number of deputy ministers in the NDP government has gone to an all-time high. In June of 1997 there were 24 deputy ministers. As of February this year there are 43 people being paid a deputy minister's salary. According to the government's own document, the total number of senior public officials in the government has grown from 83 in April of 1998 to a whopping 124 today.

I know I can't ask the member for Esquimalt-Metchosin or the member for Malahat-Juan de Fuca the question, so I'll ask the Premier: how does he intend to balance his budget? How does he expect the public to believe him one iota when he talks about balanced-budget legislation, when he has a record like that to deal with?

Hon. P. Ramsey: You know, we often hear from this Liberal opposition their denigration of the public service and their desire to really run down those who serve our public well in the province of British Columbia. We also hear from them their view that somehow we have too many people in the public service. We hear that often from them. The reality is this: B.C.'s public service is leaner than the average in Canada. The average in Canada per capita is 51 employees. We are significantly below that and only slightly greater than our neighbours to the east. These are valuable employees; they serve us well.

The Speaker: The hon. Opposition House Leader with a supplemental question.

G. Farrell-Collins: The minister must be able to read my mind, because I have a further question to the Premier in response to his BCGEU interview, where he says that British Columbia used to have the leanest civil service in the country, but now "it's not the leanest anymore."

Will the Premier tell us how he intends to balance the budget for the province of British Columbia and how he intends to get balanced-budget legislation through his own caucus and onto the floor of this Legislature when one says it's a crock, the other says it's a disgrace, and one backbencher has a private member's bill to roll back the salary increases for deputy ministers?

Hon. U. Dosanjh: We intend to balance the budget over time in accordance with the law that we're going to introduce, but not by gutting the public service as the opposition would do.

BURNS BOG THEME PARK LOAN

I. Chong: When the Small Business minister announced this government's ill-fated plan to put a theme park in the middle of Burns Bog last year, he told us that the $25 million loan to the private developers was "fully secured." However, according to FOI documents that we've received, this doesn't appear to be the case. Can the Small Business minister confirm that the $25 million loan is in fact not fully secured?

[1430]

Hon. I. Waddell: I hesitate to get up because it's not under my portfolio now, but I did deal with it, and I know about the loan. It is fully secured.

The Speaker: The bell ends question period.

Interjections.

The Speaker: Members.

The hon. member for Surrey-Cloverdale rises.

B. McKinnon: I ask leave to make an introduction.

Leave granted.

B. McKinnon: I'm pleased to welcome 56 grade 11 students from Lord Tweedsmuir high school in my riding, and I ask the House to please bid them welcome.

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Orders of the Day

Hon. D. Lovick: In Committee A, I call Committee of Supply. The estimates that we will be discussing are those of the Ministry of Agriculture, Food and Fisheries. In this chamber, I call committee stage on Bill 10, McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement Act.

[1435]

McLEOD LAKE INDIAN BAND

TREATY No. 8 ADHESION

AND SETTLEMENT AGREEMENT ACT

The House in Committee of the Whole (Section

B) on Bill 10; J. Cashore in the chair.

The Chair: There has been some question about where best to discuss the general agreement. It is the opinion of the Chair that that would be under

section 1. The committee will now proceed.

section 1.

M. de Jong: I appreciate that direction. I should say at the outset that insofar as both sides of the House have, in second reading, signalled their support in principle for the bill, it occurs to me that the process that you've set out makes sense as the most expeditious way to examine the actual provisions of the agreement.

It is, I suppose, somewhat ironic that the agreement itself is about 55 pages plus another 75-some-odd attachments. The original Treaty 8, the copy I have, is contained on three pages. So we have yet again found a way to create a much lengthier document out of a smaller one. But undoubtedly the issues have become more complicated in the intervening 101 years.

[1440]

If the minister has the copy of the actual agreement, I would propose simply to do this in the order that the articles appear. I don't have any lengthy statements; I'd like to get right to it.

Article 2 under the treaty -- 2.2 -- talks about Canada accepting and British Columbia agreeing. I just found the terminology there interesting insofar as the federal government is accepting and British Columbia is agreeing to the adhesion set out in 2.1. Was there any magic in the fairly subtle distinction in terminology?

Hon. D. Lovick: First of all, Mr. Chairman, I want to say that my colleague the member for Matsqui and I discussed the matter of how we approach this, and we agreed with the judgment you presented in terms of the best way to deal with the bill.

The second point to make is that the member's quite right: I too was struck by that language. Indeed, the federal government, in its role in terms of how it relates to the agreement, uses the verb "to take;" the federal government in fact takes the adhesion. So the concept essentially is that there is an agreement out there. The federal government accepts that this band that has not hitherto been part of the agreement will become part of the agreement -- thus that terminology. The provincial government, not a signatory to the original agreement, therefore simply agrees to that arrangement.

M. de Jong:

Section 2.3 -- again, I won't prolong this. I'm not sure I understand what that means and why it was necessary or is necessary.

[1445]

Hon. D. Lovick: The answer is more complicated and complex than one would want. Broadly, the issue of what the final boundary ultimately will be or could be is still before the courts; that's still a matter of negotiation. That's an ongoing legal battle that's been around almost from the beginning, I take it.

The issue for the purposes of this agreement is that we have said that the area west of the disputed boundary . . . . That's essentially where the McLeod Lake people live, and therefore they have the right to exercise all of their rights within that area where there isn't debate and dispute about the boundary. I guess this is, most simply put, not to prejudice the case against their being able to take advantage if, at the end of the day, the boundary is reconfigured and shifts further to the east.

I think I may be in danger of not presenting this accurately. But broadly, as I say, the assumption is that because the matter of the boundary is still in debate, in dispute -- and I think we heard that during second reading debate from our friend from the Peace River country -- we therefore have to leave this, and I'm reluctant to use the term, open, in terms of the final adjudication of that boundary.

M. de Jong: I'll take a moment to try and clear my misunderstanding, if I have one.

Schedule A, which is the map, shows claimed traditional territory; it extends from the west almost to Takla Landing, right to the Alberta border. It includes Mackenzie, Chetwynd, Dawson Creek, Hudson's Hope. So it's a large area, and I understand that from the treaty.

The

section . . . . I'm sure I'm not understanding this entirely correctly, but it left me with the impression that it contemplated, if I can use the term, "unextinguished rights" existing in that broader unclaimed traditional territory. It strikes me that it's a bit at odds with the notion that we have done an agreement that is settling on specific parcels of land, and there's been land selection. I understand that if the minister were to say some of that specific land selection is yet unresolved . . . . I understand that is the case.

I thought I heard the minister talk about the boundary dispute about Treaty 8 and how far west that extends. But at the same time, I thought this treaty was about resolving that insofar as McLeod Lake was concerned. That's why we're doing this adhesion agreement -- so that at least insofar as that band is concerned, there would be certainty. They would release any claim to anything beyond those settlement lands as set out in this agreement.

Hon. D. Lovick: Well, the member's conclusion is correct: the McLeod Lake Indian band does indeed agree to do that. The question is the boundary. To put it succinctly, the boundary is wherever the boundary is; that's where the debate occurs. B.C. thinks the boundary is to the east; the McLeod Lake Indian band in Canada believes it's to the west. But we accept the proposition that where the boundary is, the agreement would take full effect and force.

M. de Jong: Yeah, okay. Is it incorrect, then, for me to approach this, however, from the perspective that whilst -- as

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we heard in second reading debate, and I think the minister referred to this, and I think this is provided elsewhere in the agreement -- British Columbia accepts, for the purpose of this agreement only, the argument about where the boundary might be . . . ?

Maybe what the minister can do to help me through this is to paint a scenario where this clause might come into effect; maybe that's the problem I'm having. What contingency is being contemplated by virtue of this section?

[1450]

Hon. D. Lovick: I'm being given maps and so forth, Mr. Chairman. I've always been geographically challenged, so my answer is not as clear as it ought to be.

As I said, Canada and the McLeod Lake Indian band perceived the boundary to be further west than the territory that's stipulated -- okay? The essential argument is that should the boundary in fact be where it is, then the McLeod Lake people in the territory that is earmarked in this document as theirs would still exercise those rights. They would still have those rights as specified, even though the boundary might change.

M. de Jong: So we would then be referring to rights that McLeod Lake band would be exercising beyond those rights they would have on reserve and non-reserve lands, as described in this agreement. I guess now we're talking about three different groups of land: reserve lands, non-reserve lands as a defined term of this agreement, and claimed traditional territory, which is a larger body of land.

If in a subsequent court case the notion of where the Treaty 8 boundary was deemed to be other than as described in this agreement, are we saying that the claimed traditional territory would grow? Therefore the rights that McLeod Lake would have within that claimed traditional territory would grow with it. Is that the contingency?

[1455]

Hon. D. Lovick: Again, my apologies for the delay. Clause 2.3, which is the basis of this discussion, talks about Treaty 8 rights to fish and to trap; that's what it's about. It does not affect rights to reserve. The dispute is still between Canada and McLeod Lake and B.C. -- where that eastern boundary will be. This is to protect B.C. in the event that the boundary is perceived to be what Canada says it is.

Is that correct? I think I've got it mixed up again. I'm embarrassed, Mr. Chairman, but something is not clicking here. Let me clarify; I obviously need to.

The protection is for McLeod Lake in the event that the boundary shifts. If we didn't have it this way, then McLeod Lake reserve -- those areas -- could effectively be lost because of the boundary shift. Therefore we need to protect the existing reserve area of McLeod Lake.

M. de Jong: I think in a moment the member for Peace River South will get into this and talk. We're also dealing with, in the recitals, Nos. 4 and 5. But did I hear the minister correctly that somehow a subsequent court decision around the question of where the Treaty 8 western boundary is could have an impact on the reserve lands that are granted to McLeod Lake by virtue of this agreement?

Hon. D. Lovick: The answer is no. It would only affect where they could exercise their traditional rights to fish and hunt.

M. de Jong: I think we're getting there. So if I look at the map contained at

schedule A, what I should be saying to myself is: "This is the claimed traditional territory to which the parties to this agreement agree that McLeod Lake may exercise those traditional rights granted under Treaty 8." Have I got that

part correct?

Hon. D. Lovick: That's correct.

M. de Jong: A subsequent court decision relating to the issue of where the western boundary for Treaty 8 is located might impact the size or the boundaries of the claimed traditional territory as set out in

schedule A.

Hon. D. Lovick: No.

M. de Jong: Then I'm unclear about how a subsequent court decision around the issue of the boundary for Treaty 8 impacts on McLeod Lake.

Hon. D. Lovick: The purpose of this

section is to protect McLeod Lake Indian band from any impact.

M. de Jong: Okay. But I'm fairly certain I heard the minister say a few moments ago that the claimed traditional territory might change as a result of a subsequent court decision.

Hon. D. Lovick: Let's go back to what treaty rights are and things like the right to fish and hunt. Arguably, whatever the boundary is, within those boundaries the people would have the right to exercise rights to fish and hunt. It doesn't have anything to do with what their specific territory is in terms of the reserve allocation -- reserve status of the land.

M. de Jong: Okay. I may not be being as helpful in this debate as I should be. So maybe I'll just ask this, and the member for Peace River South can have a crack.

If there is going to be -- maybe the minister can verify this -- a subsequent court decision that impacts on the boundaries for Treaty 8, this document that we are debating now in the enabling legislation ensures that it will not be a court decision relating to litigation involving the McLeod Lake band. Is that an accurate statement?

[1500]

Hon. D. Lovick: I'm advised that the parties can't initiate, but they can in defence raise the issue, should somebody else challenge their treaty right to carry out certain behaviours.

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these three parties will reinitiate an action to resolve in the courts that difference of opinion and position that is set out in recital No. 5.

Hon. D. Lovick: The member is quite correct, assuming he speaks on behalf of McLeod Lake.

M. de Jong: That was why my original question related exclusively to McLeod Lake. So it is litigation by another band or aboriginal individual, presumably, that would give rise to this circumstance we've been describing.

Hon. D. Lovick: That's correct.

M. de Jong: Thanks. I think I'll let my colleague . . . .

J. Weisgerber: Yes. I'd like to go back just briefly and look at this issue surrounding the western boundary and the disagreement that exists between the federal government and McLeod Lake band on one side and the province on the other: perhaps that's not an accurate description. But it would appear that the federal government, at least, is prepared to accept the western boundary of the Treaty 8 territory as the Pacific watershed. That would include the areas claimed by McLeod Lake but could also include territories claimed under other processes by Fort Ware, Ingenika and Lower Post.

[1505]

The province, on the other hand, takes a rather convoluted position, I think -- to be kind to everybody involved -- in suggesting that they disagree that the boundary is the Arctic watershed, but they're prepared for the case of McLeod Lake to accept that it goes somewhere west of the Height of the Rockies. I don't know if that's an accurate description of it. But the province seems to say, "We don't agree with the federal government, but we almost do -- at least, we do as it respects the claim made by McLeod Lake.

But we wouldn't honour a claim made by others in similar circumstances -- basically, those three bands in the Rocky Mountain Trench." Is that a fair assessment of the position that's taken by the province today?

Hon. D. Lovick: I think, as far as I heard the member's question and then the premise on which it was based, that it was accurate. Bluntly put, we, the province, rely on the language of the treaty itself. We think the language of the treaty itself leads to the conclusion that we do, in terms of where the boundary ought to be . . . . That's the position that the province has taken, as the member well knows, for some time.

If the question is ultimately leading to what is the status, then, of those other bands like Fort Ware and Ingenika, and what would happen to them, that's speculation that I don't know if I can really entertain at this point in this discussion. The rendition -- the characterization -- that the member presents in terms of where the boundary is, I think, is accurate.

J. Weisgerber: If my understanding of the current situation is correct, the other bands that might be in a position to make a claim under Treaty 8 in the Rocky Mountain Trench have not at this point indicated any indication to do so, but it raises another question, in my mind at least.

It seems to me that because the allocation of land within Treaty 8 was based entirely on a formula per family and per individual and had nothing to do with the size of the traditional territory and the kinds of negotiations that have characterized modern-day treaties, my sense is that there was never any real attempt to quantify traditional territories within Treaty 8.

It seems to me, if one looks at recent hunting and fishing cases, that quite the opposite was the case -- that there has been accepted an argument that if an aboriginal person is a signatory to Treaty 8 or holds a Treaty 8 card, then they have with that the right to hunt, fish and trap within traditional Treaty 8 territory.

You see the kind of anomaly of a Treaty 8 member coming from Saskatchewan to exercise their treaty rights in northeastern British Columbia, hunting buffalo. Pretty clearly they couldn't be in their own traditional territory as we think of it in the modern-day context. I therefore assume that the province and the federal government have accepted this kind of universal right to exercise treaty rights within the entire Treaty 8 area. Have I missed something along the way?

Let's talk about the B.C. side of the piece, if you will. With eight Treaty 8 band members historical signatories to Treaty 8, have they defined traditional territories as you might find them in British Columbia under the comprehensive program?

[1510]

Hon. D. Lovick: I hope I understand the member's question correctly. It seems to me that the essential point of differentiation is that when you're talking about an old treaty like Treaty 8, the language of traditional territory is no longer on the table. It's rather what the treaty settlement area is ultimately, where they have constitutionally protected treaty rights. Or it is those other bands in the province which are talking about negotiating treaties that don't have the benefit of any clearly defined or demarcated boundaries, and therefore they talk about traditional territories. I don't think we can mix the two.

J. Weisgerber: I think the question arises in the Rocky Mountain Trench, in this area that is disputed, where the province believes it's not Treaty 8, and the federal government appears to believe it is. Do Treaty 8 members, including the people at McLeod Lake, exercise their treaty rights within that disputed territory? Will you see, as a result of this exercise, people from northern Saskatchewan coming over into the Rocky Mountain Trench to exercise their traditional rights in their treaty area?

Hon. D. Lovick: The member's question invites speculation on my part. All we're talking about here is McLeod Lake and their particular rights. The matter of other people from across British Columbia's borders saying that given that the new border, or the end-of-the-day border, for Treaty 8 territory has yet to be finally determined, they're therefore going to go and test their treaty rights on the basis of the fact that that hasn't been cited . . . . That takes us, it seems to me, into the realm of pure speculation, and I don't think I can answer that in any finite way at all here.

J. Weisgerber: Fair enough; I think that's a fair approach. There may be other venues where we can examine this question. But it leads me, at least, to want to examine this other line of questioning, and that is that within the area now identified as being the traditional territory of McLeod Lake for the purpose of hunting, fishing and pursuing traditional vocations, how does the province differentiate . . . ? How does the

[ Page 15873 ]

province identify the relationship between other users and Treaty 8 users, as opposed to other resource users in the rest of the province in territories where there are no treaties existing?

The point that I'm trying to get to is: what benefit is there to British Columbians in seeing a treaty signed and a treaty area identified? How has the process of dealing with the resources within the territory and outside of the reserve lands been streamlined? What are the benefits of Treaty 8 to British Columbians, with respect to McLeod Lake or with respect to the eight other bands in the Peace? How do resource ministries, how do resource users, how does everyone in the process deal differently with McLeod Lake -- recognizing that McLeod Lake and Treaty 8 are unique to the northeast of the province?

How does the relationship between the government and resource users differ in that traditional territory under Treaty 8 from those where there has not been the benefit of a treaty being signed?

Hon. D. Lovick: We had some discussion of this very issue, as I recall, in the estimates process not too long ago, and the member quite legitimately put pressure on the concept of: "If in fact you have a treaty such as this, and treaty rights are themselves perhaps not absolutely as rigorously defined as they ought to be, therefore have you achieved the certainty you think you have?" As I recall, the examples that he gave were forestry, where they said, "We need very clear guidelines before we can do anything within Treaty 8 areas because we're not quite sure where our rights and our jurisdictions stop and start," and so

forth.

I think the broad answer to the question is that . . . . Well, two points. Number one -- the very specific -- is that we obviously entered this agreement because it is a settlement of a litigation. So, obviously that was an important issue, and that in itself, I think, answers some of the member's question. But the other is in the broader, larger question, in terms of certainty -- knowing that this land is encumbered, if you will, and that therefore you can't simply carry on some sort of development as if you didn't have any obligations attached to other parties -- in this case, the first nation.

[1515]

I think the member's question, again, if I follow the argument, is rather broader than the specific piece of this, just in terms of what is the ultimate benefit of this particular settlement? I think it's providing some self-sufficiency to the first nations, providing certainty on the land base and obviously resolving the legal matter. And I think, at the end of the day, probably all of those things will accrue to the interests of the so-called third party as well.

J. Weisgerber: I can understand the benefits of resolving a court case. I guess there's always a benefit to that. But I don't see that things are any different today on the traditional territory, other than the fact that the reserve lands have been expanded. I don't see the relationship between any of the other parties having changed a whit as a result of the agreement that was signed.

It's easy to understand the economic benefits to McLeod Lake band members, and that's admirable. But if a treaty is to benefit all parties, then those other users of the land should be able to walk away saying: "Yes, but our situation is now different as a result of this treaty being signed. Our situation on the non-reserve lands has improved as a result of this treaty being signed. No one has yet been able to tell me how or give me any demonstration that things have changed. All of the processes that are in place or were in place prior to the treaty being signed are still in place, to the best of my knowledge.

There's been no streamlining of approvals for resource extraction. If there has, I would be delighted to know about it. Perhaps it's simply my lack of knowledge. But I go to the broader question. I don't see the province dealing differently with Treaty 8 than with the rest of the province where treaties don't exist. The province seems to be entirely blind to the treaties with respect to the administration of their responsibilities, particularly by the resource-based ministries.

I see absolutely no difference in the way the Minister of Forests or the Minister of Environment or the Minister of Energy and Mines, etc., deals with questions around consultation, land use and rights of access. I see no difference. And because I see no difference, I conclude that there is little or no benefit, beyond the economic ones to the band that result from the treaty.

Hon. D. Lovick: As I said a few minutes ago, this clearly is a sense of déjà vu all over again. We did have some of this discussion earlier. And I respect the member's right to offer that observation. The essential argument is that what we have done in this and in all treaties is we have moved from the area of undefined aboriginal rights to defined treaty rights. That, notionally certainly, should make a significant difference.

In terms of the specifics, I think I undertook in our estimates process to provide for the member, through the various line ministries, some clear enunciation of what they saw the difference is in terms of what that meant, in terms of a specific defined right as opposed to an undefined one. I thought that was underway. If that hasn't happened, I'm disappointed by it.

[1520]

What we have to deal with in the area of undefined aboriginal rights, of course, is that whole large, open question: simply that we know there's something called aboriginal rights and title constitutionally protected, but what those are, how specific, what their extent is, where they stop and start -- all of those things -- we do not know. That, of course, arguably puts us in this terrible predicament in terms of no certainty on the land base and the obvious economic impacts following therefrom.

What we therefore have to do is carry out a very elaborate consultation process. And we've drafted all the guidelines -- the post-Delgamuukw guidelines -- to enable us to function. My assumption is that when we have in fact spelled out the particular rights in the area of Treaty 8 and we know precisely what belongs to the McLeod Lake Indian band versus somebody else, then clearly we're one step along in terms of consultation. We're not starting from the beginning, in other words. We, rather, know whose responsibility begins and ends and where that does.

I would assume that, on the ground, that does make a difference in terms of environment, in terms of parks, in terms of forestry, in terms of mining and so forth. Certainly, based on the experience we've had with the oil and gas and mining industry in the Treaty 8 territory, I think we can argue that the certainty of the treaty is indeed preferable to the uncertainty of undefined aboriginal rights.

Again, I think the member can probably offer numerous examples to suggest that that isn't the case. And I suspect that dealing from an individual ministry perspective, we could

[ Page 15874 ]

probably give an equal number to suggest that it is. But I appreciate the point he makes. I've endeavoured to answer it to the best of my ability.

J. Weisgerber: I won't belabour the point, and I won't test the minister's patience. I wonder, though given that this is an adhesion to Treaty 8 and given the fact that, very literally, the land entitlements have applied . . . . Precisely the same formula for land entitlement is in place today as was in 1899 under the treaty.

We know also that there are other areas where the treaty has been modernized, if you like. I could read off the entitlements of cattle and implements and seeds that were designed to help the bands become agricultural in nature. As I understand it, in this treaty they have simply been replaced with a $25,000 payment, which is in lieu of.

Where I don't see the treaty either confirming or modifying is in the area of the right to hunt, fish and trap as formerly. I go back to the original treaty, and if you'll bear with me, I'll read a small paragraph and then ask the minister if he could comment on that.

" . . . Her Majesty the Queen hereby agrees" -- this is from the old treaty -- "with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes."

Clearly the spirit of that . . . . That was pretty definitive, and I think that's no longer applied. If it is, I'd be curious to know that as well, but I don't think it is.

Can the minister tell me how the treaty deals with the right to hunt, fish and trap and pursue their previous vocations? Because it clearly doesn't fall into the area of land allocation, where the treaty was interpreted literally; nor does it appear to fall into the area of other cash benefits under the treaty, which have been modernized. How has this treaty and our legislation dealt with the right to hunt, fish and trap as formerly?

[T. Stevenson in the chair.]

[1525]

Hon. D. Lovick: The rights are the same as traditionally, if I can use that term, but essentially as interpreted by the courts.

J. Weisgerber: So the treaty and the agreements around it have not attempted to at all codify . . . ? Is the minister saying that the right to hunt, fish and trap within the areas covered by McLeod Lake are precisely the same as those in the rest of British Columbia? Or is the minister saying that the rulings of the court in other jurisdictions that are covered by Treaty 8 provide the leadership or the legal basis for policy here in British Columbia?

In other words, is it the decisions in Alberta, Saskatchewan and the Northwest Territories in Treaty 8 that define hunting and fishing on Treaty 8 lands in British Columbia, or is it court decisions arising from incidents outside of the treaty in unsettled areas of British Columbia that are the case law that apply?

Hon. D. Lovick: The short answer is that it's Treaty 8 that sets out the rights, and then any relevant court decisions that might be taken are made.

J. Weisgerber: I have a sense that the court decisions have come down in British Columbia outside of Treaty 8. There haven't been a myriad of cases in British Columbia dealing with rights as they apply to Treaty 8. There have been cases in Alberta, and they may have application in British Columbia. There have been cases around British Columbia that may or may not have application, given the fact that the decisions were rendered in areas where treaties didn't apply.

Hon. D. Lovick: Only to the extent that those decisions affecting another part of Treaty 8 jurisdiction -- say, Alberta -- are perceived to be relevant to the British Columbia context, would they apply, but that's very much case by case and hypothesis on our part at this point.

J. Weisgerber: Was there any attempt to codify or put into agreement, as has been done with the other elements of the treaty, the notion of an

interpretation or codification of hunting, fishing and trapping rights, as opposed to continuing to rely on case law?

Hon. D. Lovick: The answer is no.

M. de Jong: Maybe I can bring the conversation that's just taken place between the member for Peace River South and the minister around to the provisions of the agreement.

I am looking at

article 3.3, which refers to the fact that there is no obligation on the part of British Columbia to consult with the McLeod Lake band with respect to any activities that have an impact upon their

section 35 rights outside of McLeod Lake's claimed traditional territory. This is

article 3.3. Is it implicit in that

section that the obligation to consult therefore exists with respect to any activities that would have an impact on their rights -- hunting, fishing or otherwise -- within the claimed traditional territory as set out in

schedule A?

Hon. D. Lovick: That is correct.

M. de Jong: I take it, then, that the discussion the minister was having with my colleague earlier would relate to attempts to codify the consultative obligation that the province has assumed by virtue of the agreement as a whole. The point that escaped me through the discussion that just took place was: what now guides that consultative obligation?

Is it therefore different within the claimed traditional territory set out in

Schedule A? Or is it similar to an obligation the province believes it has, or the courts have said the province has, elsewhere in the province where treaties don't exist?

[1530]

Hon. D. Lovick: We did have this discussion, as well, in estimates. I recall saying at the time that "out of an abundance of caution," I think was the phrase that we used, we would take the same approach in terms of consultation and approaches as we do in the general traditional territories, as we have fashioned under our consultation guidelines in what I've referred to as post-Delgamuukw universe.

[ Page 15875 ]

M. de Jong: That would therefore apply . . . . Those guidelines that the minister referred to would apply throughout the McLeod Lake band-claimed traditional territory insofar as any kind of development -- mineral extraction, forestry -- that might be seen and that the courts have ruled in the past would impact on those traditional hunting, fishing and gathering rights.

Hon. D. Lovick: That is correct, except of course that we would be looking at the rights at first glance, obviously, as specifically defined and set out in the treaty itself.

M. de Jong: Okay, I won't go back over ground that the member for Peace River South covered in attempting to ascertain what those were.

Article 4 refers to the transfer of proposed and additional reserve lands. It indicates that the province will be transferring those lands free and clear of all interests and encumbrances except the two that are listed there in articles 4.1.1 and 4.1.2. That's clear enough. However, are there other interests and encumbrances? To get right to the point, are there licensees, guide-outfitters and other interests against the land involved here that will disappear as a result of the transfer of the lands referred to in the article?

Hon. D. Lovick: At the end of the day, the land will be transferred free and clear of encumbrances. As I think the member knows, that's over a three-year time frame, I believe, to achieve that.

G. Hogg: I seek leave to make an introduction.

Leave granted.

G. Hogg: There are 26 grade 4 and 5 students from Peace Arch Elementary School here with their parents and teacher, Mme. Colette Chalifour. I would ask the House to please make them welcome.

M. de Jong: That's helpful. What I'm trying to ascertain is, if there are additional encumbrances -- I am advised that this may involve having an impact on some guide-outfitters and others -- what those interests are. If it's too lengthy a list, or whether there is a list . . . . What steps have been taken, and what proposed steps will be taken, to deliver on the promise that is given here to clear off those licensee interests and those encumbrances?

[1535]

Hon. D. Lovick: The basic rule is that we will compensate those who we conclude need to be compensated. There are a number of different interests, of course -- trappers, guide-outfitters and volume-based licences. All of those are interests in the land base, and we will adjudicate them as the thing progresses.

M. de Jong: Does the ministry have a list of those interests as at today's date? I must confess that I have not done a search of the land title registry or any of the other registries that one would go to, to ascertain the extent of any third-party interests. But perhaps the ministry has, and perhaps that list does exist.

Hon. D. Lovick: We do have a list.

M. de Jong: Is that a list that is in the public domain or that the minister is prepared to place in the public domain?

Hon. D. Lovick: Some of those on the list are public and some are not -- simply because of the categories, I gather. The question of whether one has obligation for all of those interests is a legal one, still to be determined. But clearly there is a list, and clearly we will compensate those interests that we have an obligation to compensate.

M. de Jong: Okay, I would just say this: I have been advised that there is some concern on the part of those, I suppose, most directly impacted. I don't know who they all are, and I don't know that we in this House or we in the opposition will have another opportunity to do our job in ensuring that these licence holders will be properly compensated. So if there are individuals or licensees in a particular category that the government is unprepared to release or list off . . . .

I guess I'm guided somewhat by what took place in the Nisga'a debate, where I think we did have actual lists of the individuals, be they corporate or individual interests, impacted by the land. The amount of land was significantly larger in that case. I think what I'm looking for is something beyond an assurance from government that: "Yes, in clearing title, we'll look after these people." I don't want to be accused at the end of this process: "That became a hollow promise from you people in Victoria, and I've now lost my trapline or my access to guide-outfitting lands. All I got was a promise that we'd be looked after, and here we are without our livelihood."

Hon. D. Lovick: I can tell the member that there has indeed been a consultation process from the beginning and through this entire activity of negotiating this agreement. All of those who have interests and whose interests are impacted or to be impacted have indeed been notified. So that's an ongoing set of discussions happening. It's not the case that suddenly somebody will appear and surprise us all by saying: "Oh yeah, and they forgot about me." That discussion is going on as we speak.

M. de Jong: That, of course, is what gave rise to the need for the adhesion agreement in the first place: someone was forgotten. Well, is the minister prepared, then, to provide a list of those individuals that have been contacted, who are impacted, subject only to the limitation that he referred to in a particular category? And if he can indicate what that category is, that would be helpful. And is he suggesting, then, that the ongoing consultation towards settling upon compensation for those interests will take place on an individual basis, on an ad hoc basis, or that there are . . . ?

I don't know what kind of numbers we're talking about here, if there are three or four people or if we're talking about a couple of hundred licensees. I suspect it's not a huge number, but I don't know that.

[1540]

Hon. D. Lovick: We are certainly prepared to provide the member opposite and his colleagues with a list of all of those with whom we have been consulting, subject only, of course, to the freedom-of-information and protection-of-privacy limitations. But beyond that, yes, we're happy to provide that information.

[ Page 15876 ]

M. de Jong: In the same larger section,

article 4 -- only because it's come up elsewhere in this House in debates -- there is reference made to obligations around archaeological sites and archaeological materials. Is the ministry aware of how many such sites exist on the land that it's transferring? The agreement imposes some obligations on the provincial government and the three agencies that maintain rights following transfer of the lands. How many such sites exist? Does an inventory exist around that question?

Hon. D. Lovick: There is no reference in the agreement to archaeological sites, and therefore I would ask for clarification from the member. I'm not sure what he's referring to.

M. de Jong: Actually, in 4.1 my question related to whether the entire

article covered archaeological sites. In 4.1.4(

j) there is reference made to the discovery and disturbance of archaeological material. So that might . . . . Perhaps that's a stretch on my part, but the agreement refers to archaeological material.

My interest stems from the fact that it is increasingly becoming an issue elsewhere in the province. There have been other debates around the extent to which those sites show up at the land title office and whether there are any such sites involved in the land that will be transferred pursuant to this

section of the agreement.

Hon. D. Lovick: I think the answer to the member's question is in the remainder of the clause (

j) that he refers to -- page 11,

article 4.1.4(j) -- namely, that in the event that the site . . . . It's hard to read this without quoting all of it: " . . . if any land alteration or other activities on the reserve lands by" the following people, their licensees or agents, "results in discovery or disturbance of any archaeological material, Westcoast or Federated "-- the two parties named -- "will take all reasonable precautions to avoid direct impact with that material and immediately notify McLeod Lake" band.

M. de Jong: Then can I just assume that if, in the lands being transferred pursuant to

article 4 . . . ? Maybe this is the case. Is the ministry unaware of whether on those lands there are any archaeological sites as contemplated by that legislation that was passed in this House a couple of years ago?

[1545]

Hon. D. Lovick: That's correct.

M. de Jong:

Article 4.1.7 speaks to the issue of transferring administration for these proposed reserve lands and the issuance of permitting with the two licensees mentioned there. Has that already taken place?

Hon. D. Lovick: That has not yet happened, but it will happen prior to the transfer.

M. de Jong: Did the minister say prior to the effective date?

Hon. D. Lovick: Prior to the effective time of the transfer is the legal answer I'm given -- the legal transfer of land.

M. de Jong: Lastly in this section, 4.1.8 speaks to the issue of the servicing agreements, referred to in subsections (

a) and (b). All I'm looking for here is an indication of the status of the negotiations that I understand are taking place -- whether they are in the process of taking place, whether it's done or, if it's not, when it's likely to be done. What's involved in terms of the provincial obligation, if any, with respect to these servicing agreements?

Hon. D. Lovick: All I can tell the member is that it has to be done before the land is transferred. To the best of my knowledge, it has not been done now.

M. de Jong: Actually, I'm not sure that that's the case. The

section does provide McLeod Lake with an option. It may choose to provide its own services. So this doesn't, on the face of it, seem to be a prerequisite to transferring the land. But I may be reading it incorrectly.

Hon. D. Lovick: I think the clause is indeed self-explanatory, as the member alludes, that if McLeod Lake chooses to provide its own services, then that will suffice.

M. de Jong: Does the agreement then contemplate a declaration by McLeod Lake, one way or another, insofar as its intention to negotiate those agreements for the 28 hectare site and the 8.1 hectare site in Mackenzie?

Hon. D. Lovick: The agreement doesn't so stipulate. But I think it's fair to conclude that the transferable land would be dependent on that clarification -- that that has indeed happened.

M. de Jong: I don't want to belabour this, but my understanding is that the land in those two cases will be transferred and that presently it's contemplated that an attempt will be made to negotiate servicing agreements for that land. But the alternative for the McLeod Lake band would be, if those negotiations weren't fruitful, to say, "All right, our option is to try to provide services ourselves," although the practicality of that is probably very much in doubt.

Hon. D. Lovick: The member is correct.

[1550]

M. de Jong: The

section dealing with the environmental audit -- and the

article itself deals with when that took place, and this is the case, in 4.2.1, 4.2.2 and 4.2.3 -- imposes on British Columbia financial obligation to remediate lands which may have been contaminated after a certain date. Broadly speaking, the question for the minister is: to what extent has the government of British Columbia had an opportunity to examine and quantify the nature of that assumed liability? Do we know how many? Have any sites that fall into the categories listed here been identified, and if they have, what are the estimates around the cost of remediation?

Hon. D. Lovick: As the agreement makes clear, we're released from certain obligations save and except those identified. I gather they are rather narrow, although we haven't quantified them particularly. I can also advise the member that a federal government audit was conducted on the proposed sites on the proposed reserve lands, and no contamination was found. So the conclusion, I think it's safe to say, is that if there is any need for remediation, the areas will be relatively small in number and therefore, I would think, inexpensive.

[ Page 15877 ]

M. de Jong: Here's what I'm hearing: insofar as the audits that have taken place, there have been no identified sites thus far. I guess the other thing I read from this

section as a whole is that if there has been any contamination of sites, it has taken place after August 10, '98. That's the provinces responsibility with respect to the cost of remediation.

Hon. D. Lovick: That is correct. But again, to reiterate the point, to the best of our knowledge there are no sites of that kind.

M. de Jong: Does the agreement include any sort of limitation, following which -- the identification of such a site or an attempt to or an allegation of the discovery of such a site -- the province would be excused from that liability? Does it exist in perpetuity?

Hon. D. Lovick: The province's responsibility ends after the point or the date of transfer. The province has said that it will remediate if it is determined that reserves became contaminated after the date of Canada's audit but before the date of the reserve to transfer.

M. de Jong: In the

section that deals with a circumstance in which a contaminated site is identified -- I'm looking at 4.2.5 -- the option exists either to remediate or to select alternate lands. In this case it involves the province assuming responsibility. That, I take it, is a process that would involve joint negotiations between the province and the band. In the event that there were no agreement, do the dispute resolution provisions of the agreement kick in to resolve that?

Hon. D. Lovick: The answer is yes to both questions.

M. de Jong: At the moment the province is relying upon the federal audit to support the contention that there are no such sites as contemplated in

article 4. And the province is unaware of any new sites that have been created since August 10, 1998.

[1555]

Hon. D. Lovick: That is correct, Mr. Chairman.

M. de Jong: Under the

section 4.4, "Reserve Entitlement," there is a figure of 387, defining the number of members as of May 1, 1998. How many of those members of the McLeod Lake band actually live on the existing reserve?

Hon. D. Lovick: Sorry, I don't know.

M. de Jong: In a moment we will get to the provisions dealing with the lands in severalty. I think I was told in the briefing that there were upwards of 39 or 40 members of the band who have chosen to exercise that option. So presumably we can deduct that right off the top. Is the 387 figure men, women and children?

Hon. D. Lovick: Yes, Mr. Chairman.

M. de Jong: That would refer to any members of the band, whether or not they lived on the existing reserve.

Hon. D. Lovick: Yes.

M. de Jong: Under 4.6, just a couple of questions: in 4.6.1, does the actual transfer of land, when all of the prerequisite conditions have been met and carried out, occur -- the statutory instrument for that -- in an OIC, an order-in-council, from the province of British Columbia?

Hon. D. Lovick: That's correct.

M. de Jong: Not to jump ahead, but that would be dealt with in

section 2 -- which we're not on -- of the actual bill that we're supposedly dealing with today and in

section 3, empowering the ministers responsible to sign those OICs.

Hon. D. Lovick: That is also correct.

M. de Jong: At the risk of doing what I did at the outset, I must confess that in 4.6.2 I did not understand the . . . . Again, this seems to contemplate a particular contingency. I was not clear in my mind what that contingency was and how, if it were to occur, it would impact on this settlement.

Hon. D. Lovick: At risk of ruining a wonderful record the member has, of my saying, "Yes, yes, yes, correct, correct, correct," I have to be a little more careful in this one. Let me qualify by first saying yes, it is true. But it is hardly anything to raise the flag on, simply because OIC 1036 is the power of reservation of road and road access; that's the famous highways entitlement. Those 1036s have been challenged in court for a number of years and indeed will continue to be. In the event that the 1036 power of the Crown is ever effectively thrown out by the court, then we're going to have to deal with the entire land base of the province and not just McLeod Lake and Treaty 8 territory.

M. de Jong: All right. So what we're dealing with here is a question of ownership of road sites in the event of a particular ruling by the court as it relates to actual reserve lands, as opposed to traditional territory or anything of that sort.

[1600]

Hon. D. Lovick: That's correct.

M. de Jong: Not to seem petty, but as I went through the agreement as well, I couldn't help but notice that where there are obligations on the provincial ministry to do things, they tend to impose fairly strict time periods -- 60 days being the standard. But they are mandatory. In the obligations that are imposed on the federal government to designate the lands as reserve lands and to ensure that the proper orders are done federally, the minister is going to have to make only his best effort to do so within six months.

Is the minister for the province of British Columbia satisfied that the federal government is going to do what it needs to do in an expeditious way? I found it curious that the deadlines imposed on the province were mandatory ones and that that was not the case insofar as the federal government was concerned.

Hon. D. Lovick: These are negotiated provisions, and we are confident and comfortable that we can meet them.

M. de Jong:

Article 5, dealing with the mineral rights . . . . I think I'm reading the original Treaty 8 correctly in stating that mineral rights are reserved to the Crown -- in those

[ Page 15878 ]

Hon. D. Lovick: That's correct.

M. de Jong: Then we get to the question that's laid out in the rest of the section, about where there is an expression of interest in accessing a mineral resource. B.C. and McLeod Lake have to agree to that, and they have to come to an agreement around the division of revenues that derive from that development. It's a 50-50 split, as I understand it, in the document. But there is some discussion, or at least the provisions of the agreement contemplate ongoing discussion, to define what mineral revenues actually are. Is that something that will happen on a case-by-case basis?

Or are negotiations taking place now to settle once and for all how to define revenues for the purpose of revenue-sharing?

Hon. D. Lovick: The intention is to get one broad agreement which we will negotiate once for all. That will happen when we find some mineral resource, I guess, that needs to be divided.

M. de Jong: Those are not . . . negotiations that are ongoing at this point. If and when a situation arises where someone indicates that they want to go in and begin some exploration work or develop a minesite, there will be discussions as between the province and the McLeod Lake band about how that will take place and how revenue from that particular project will be shared.

If that's correct, the other question . . . . I can save myself a trip out of my chair, hon. Chair. Does the province have in mind other types of revenue-sharing agreements that exist now, or is this somewhat uncharted territory insofar as this kind of revenue-sharing agreement as laid out here is concerned?

Hon. D. Lovick: To the first question, on which the second one was premised, the answer is yes. The second question's is yes, we are indeed contemplating something similar with other Treaty 8 bands who might be in similar circumstances.

[1605]

B. Goodacre: I'd ask leave of the House to make an introduction.

Leave granted.

B. Goodacre: Today we have visiting us in the gallery a group of grade 7 students from St. Joseph's school in Smithers, British Columbia -- a school I attended between 1959 and 1966. I'd like the House to please make them welcome and demonstrate what a wonderful piece of democracy we have here in British Columbia.

M. de Jong: I'm going to push on to

article 6 if there's nothing further from other members; that is the forest development plans. The first subsection contemplates the development of a forest development plan along the lines set out, using various defined terms. Is that plan in place now? If it's not, when is it anticipated?

Hon. D. Lovick: That has not yet been done. It will be in place when the lands are transferred.

M. de Jong: Sorry. Is the minister saying that that must be in place prior to the transfer of lands from B.C. to Canada?

Hon. D. Lovick: No, Mr. Chairman.

M. de Jong: Is there a date relevant to the provisions of this agreement by which that plan must be in place?

Hon. D. Lovick: The trigger point is that it has to be done before the harvesting begins.

M. de Jong: That's a plan that under 6.2 -- the criteria set out there -- must be "sealed by a registered professional forester of British Columbia," and the minister will alert his colleague to the existence of that body. But that is a debate for another day.

Here's the general observation that I would make about these sections: 6.3.2 talks about the establishment of a "McLeod Lake Indian band forest practices code," another defined term. It talks about a meet-or-beat provision with the province of British Columbia's Forest Practices Code. I think I understand what is trying to be achieved. But the practicality of asking a band whose members -- men, women and children -- total 387 to develop a code that is detailed, perhaps to a flaw, depending on what one's perspective is . . . . Why not in this case simply say it's the province of B.C. Forest Practices Code?

Hon. D. Lovick: The short answer is that the McLeod Lake Indian band wants to do it. They would rather have ownership of the problem, insofar as they have ownership of the resource and therefore would like to hire their own people and their own expertise to do the work.

M. de Jong: You know, that's probably an answer. Well, it is an answer. It's perhaps a more convincing answer if it didn't involve imposing or, dare I say, complicating the lives of others beyond the McLeod Lake band down the road. Presumably, once governments have agreed to that kind of provision -- implicit in that, as we saw, although it's not laid out here as it was in Nisga'a -- there's an obligation if the provincial government presumes to change any of the provisions of the provincial legislation to engage in discussions with McLeod Lake. Depending on what the proposed change is, they might be very short and brief discussions.

On the other hand, something that the province decides to do in its provincial legislation might have a fairly significant impact on the code that McLeod Lake establishes. You begin to wonder about the impact of the province implicitly assuming an obligation to go back to an entity that involves 387 people every time it wants to amend a very complicated piece of legislation. So it has ramifications that extend beyond simply McLeod Lake.

If that's the criterion by which the province is going to agree to these kinds of provisions, that's a bit worrisome. I think that any band, however small, will say: "Well, we'd like to do it ourselves too, and if you want to change your legislation, you'd better come talk to us." So as a matter of principle, I wonder a little bit about the logic behind agreeing to this provision on the basis that the minister says the government was prepared to agree to.

[ Page 15879 ]

[1610]

Hon. D. Lovick: If there's a principle at stake here, surely it's something about self-determination and people who have ownership of the land and accept as part of that the concurrent obligation to manage their resources in a sustainable, effective, sound way -- accepting, moreover, the fact that they are our neighbours and must connect with our society, and therefore both sides recognizing that it is in our interest to have those ongoing discussions and to ensure that we are both living up to the kinds of standards I'm sure we would all, on the face of it, certainly agree to.

I think, again, this is a negotiated matter. They wanted it this way. We, the province, agreed that this is an acceptable obligation for us.

The comfort I would offer the member is, I guess, 6.3.7 within the agreement, where the parties, as it says, "may negotiate arrangements from time to time in order to achieve coordination and administrative efficiencies," etc., in respect indeed of all these various things that we're talking about in terms of their own harvesting, the silvicultural prescriptions and plans. I think both parties are recognizing that we don't want to be administratively or bureaucratically bound to the point that it's costing us more money and taking us more time than we all perceive to be desirable.

Therefore I think, to their credit, the parties have recognized that they should in fact have a clause such as the one that I just quoted, which enables them to look for efficiencies and improvements in the process so it won't be overly burdensome. I think that's probably the most comfort I can give the member. I'm not sure it's satisfactory, but given that we are discussing a matter of principle, that's probably about as close as we could get to agreement in any event.

M. de Jong: Well, I think I've made the point. I guess the only feature that I didn't hear in the minister's response was some consideration for the question of financial common sense and the notion of developing such detailed . . . . Or maybe not; maybe I'll be pleasantly surprised, and the McLeod Lake band will develop a forest practices code of the sort that I think should exist in the province as a whole. This may be an opportunity for McLeod Lake to take the lead and for the province to cotton on to that. Somehow, today I doubt it.

The mechanism by which this anticipated McLeod Lake forest practices code will achieve its statutory authority is referred to in

article 6.3.5, and I'm a little bit curious about this. There seems to be some uncertainty around that. It talks about the federal government passing "a new regulation . . . to the Indian Act or some other available means." What would the other available means be by which a McLeod Lake forest practices code would achieve legislative authority?

Hon. D. Lovick: I think the intention of this particular clause is to simply say that if we can't do it under the aegis or auspices of the Indian Act, then the parties will agree to work together to find an available means to do the job. It's simply an expression of good will and intention on the part of the parties.

[1615]

M. de Jong: Okay. But presumably it requires some manner of federal legislative action, or it doesn't have . . . . Well, the minister says federal authority, and I'll go along with that. It requires either primary or, more likely, secondary legislative authority from the federal government. That will be significant, insofar as it is something that will be federal legislation that the province needs to be cognizant of insofar as its own Forest Practices Code is concerned. Is that correct?

Hon. D. Lovick: I think that's correct. All of the parties have committed to make this operational, and the mechanism to do so is left to the discretion of the parties in the event that the statutory authority of the Indian Act isn't deemed to be the appropriate one.

M. de Jong:

Article 6.6 refers to fire suppression and an existing agreement. I don't know what's in that agreement. I don't need a detailed description here beyond some understanding of what obligation the province has assumed insofar as fighting forest fires on lands that are being transferred pursuant to this agreement.

Hon. D. Lovick: The agreement is that we, the Forest Service, will fight fires wherever they occur, whether on reserve land or outside that land. Fires that start off the reserve land, we the province will pay for. Fires that start on the reserve land, the McLeod Lake Indian band will pay for -- the cost of fighting the fire, that is.

M. de Jong: I think the minister was going to add something about the obligations that Canada might have, and I'll happily hear him out.

Hon. D. Lovick: Yes, the member's correct. It is Canada, not the McLeod Lake Indian band, that would pay for fires that begin on reserve land.

M. de Jong: The silviculture provisions of the agreement are also set out in

article 6, starting at 6.7.1. Again, this is simply an attempt to get some indication from the minister to quantify the nature of the obligation that the province has assumed here, in terms of meeting the silviculture and reforestation obligations it has assumed under the agreement.

Hon. D. Lovick: If I understand correctly, the question has to do with costs and who bears those. The costs of silviculture and road deactivation are the responsibility of the licensees of the small business forest enterprise program. Is that the correct term, the SBFEP? The costs are typically amortized out of the revenue from the sale of timber. These are existing obligations of the licensees and the SBFEP and therefore not additional costs to the province.

[1620]

M. de Jong: Actually, I thought the way the agreement worked was that British Columbia assumed the obligation, with the option to pursue the licensees where the licensees have access to the timber. So if the answer is, "We don't know just yet, because we haven't carried out the survey contemplated by

article 6.7.5," then maybe that's the answer. "We just don't know how much of this is going to be covered by existing licensees and how much of it will accrue directly to the provincial government" -- maybe that's the answer, but I'm unclear about that.

I'm also unclear about the distinction between pre- and post-October 1, '87, what magic is associated with that date

[ Page 15880 ]

and whether that involves the litigation that was in place in the 1980s. I just don't understand the significance of that date.

Hon. D. Lovick: There are two categories of question. To the first one, the answer is as follows: B.C. does not assume the obligation. Rather, we simply commit ourselves to ensure that the obligation is satisfied -- that it is done. The addendum to that is simply that the licensees will continue to have their obligations. That's the principal position.

To the second question regarding October 1, '87 -- before and after -- let me present the following information. The ongoing silviculture obligations on MLIB lands -- McLeod Lake Indian band lands -- fall within a number of categories. The first category is the pre-1987 silviculture operations, "backlog silviculture." These operations are a ministry responsibility through contacts with industry, funded through Forest Renewal B.C., and they're treated differently because they predate the implementation of the Forest Practices Code. The ministry has approved funding for 2000 in the FRBC budget to complete these activities.

The second category is the post-1987 silviculture operations. These are legal obligations under the Forest Practices Code which apply to both the major licensees and the small business forest enterprise program.

M. de Jong: Just dealing, then, with the status of forestry roads -- 6.8.3 -- am I reading this correctly when I summarize that McLeod Lake will own forest roads not deactivated, pursuant to 6.8.1 and 6.8.2? If that is . . . . Well, let me ask that first.

Hon. D. Lovick: The answer is yes.

M. de Jong: And in so doing, it assumes all liabilities associated with the use of those roads.

Hon. D. Lovick: That's correct.

M. de Jong: I'm at 6.12.2, dealing with the timber supply analysis and the possibility of a catastrophic event. Are we thinking of anything other than, for example, fire or pest infestation?

Hon. D. Lovick: Yes, that is true.

[1625]

M. de Jong: Yes, those are the two circumstances that the minister can think of that would be captured by the phrase "catastrophic event"?

Hon. D. Lovick: Yes.

M. de Jong:

Section 6.12.4 -- I again want to confirm that I am reading this properly. McLeod Lake can engage in secondary manufacturing, value-added processing of the wood. Is that correct?

Hon. D. Lovick: Yes.

M. de Jong: It can sell harvested lumber really to anyone it wants within the province of British Columbia.

Hon. D. Lovick: The operative word is offer.

M. de Jong: I'm sorry; that distinction may elude me -- offer for sale harvested timber to anyone within British Columbia?

Hon. D. Lovick: That is correct.

M. de Jong: Is it 6.12.5 that operates? Is that the authority for the proposition which was set out in some of the ministry's announcement material, that log exports are prohibited in accordance with provincial laws? Is that where in the agreement the authority for that statement comes from?

Hon. D. Lovick: That's correct.

M. de Jong: So the ability that McLeod Lake would have to export logs would be tied directly to whatever legislation was in place provincially.

Hon. D. Lovick: That is also correct.

M. de Jong: Let's just deal with the stumpage issue. I'm indebted to some of the ministry staff for providing me with a little bit of this information. I was able to get a little bit more. I wonder if the minister can provide a quick synopsis, on the record, of what the obligation is that the province has assumed with respect to the payment of stumpage, how it operates and from what dates it operates. What I will ultimately get to is the anticipated future liability and how that is going to be settled.

Hon. D. Lovick: The member asked for a short overview, so I will endeavour to do so. Certainly I can elaborate if, as and when the need arises, but let me start with the following.

As of March 31, 2000, the total stumpage bill payable to the McLeod Lake Indian band will be less than $29 million. An initial payment to the MLIB was $25 million. Further payments will be made as stumpage is invoiced. Current harvesting was completed before March 31, 2000. No further harvesting is expected until the fall of 2000. Stumpage payments will be discounted to offset silviculture and infrastructure costs incurred under the small business forest enterprise program. I hope that's helpful.

M. de Jong: It is. It is also, I think, happily consistent with previous information. I'm interested to know the process by which the calculation will be made around the additional moneys owing. I think I was told that some of that relates to additional beetle kill, harvesting that may need to take place and to what extent the minister and his colleagues in the Ministry of Forests have now been able to quantify the extent of that additional logging that will be required and the amount of money that will translate into for stumpage.

[1630]

[T. Nebbeling in the chair.]

Hon. D. Lovick: The provincial liability dates from October 20, 1995, to the transfer of land. To this point -- October of 1995 to the present, that is -- we have spent approximately $26 million. Between today's date, though -- of the $26 million -- and the transfer of land, there may be further beetle kill

[ Page 15881 ]

infestation, and therefore additional harvesting would have to occur. That's what we project forward as a possibility, leading us up to $29 million, I believe, as the figure.

M. de Jong: I tried to make these notes as we were going. I though that what we had established was that since October 1995 there was going to be approximately $29 million owing, of which $25 million has already been transferred around stumpage. I think the additional figure that I got -- not from the minister, but elsewhere -- was that there could be as much as an additional $18 million owing pursuant to these stumpage provisions. So that would be $29 million and $18 million, whatever that works out to be. If I'm way out of the ballpark, then the minister can advise me of that.

Hon. D. Lovick: I will simply quote the member's phrase so that he won't see this as being confrontative or something: he is way out. We are obviously projecting at the moment. But I would just draw him to the last

section in terms of the bill before us. He will note in the penultimate paragraph of the document: "The total of amounts paid under subsection (1) must not exceed $12 million". That would be in addition to the $25 million. That figure of $37 million would be, of course, $10 million less than the figure the member read into the record a moment ago.

I would only add this: that additional $12 million is not in any way necessarily going to be the amount. It is rather a prudent cautionary note -- a cap, if you like, on what we would pay. We hope it will be significantly less.

M. de Jong: I think that's helpful. Under these stumpage provisions we've paid $25 million, and under no circumstance would the additional amount for this or any other provision extend beyond $12 million. The authority for that statement is

section 10 of the bill.

Hon. D. Lovick: The member is correct.

M. de Jong: All right. What happens if McLeod Lake comes along and says: "Hang on, you owe us additional stumpage," or "You have some site remediation costs, and those are amounts that you, the province of British Columbia, owe to us pursuant to this agreement. We really don't care that you passed a bill that says you're capping your payments at $12 million. That's fine. You can cap it at $1 million if you like, but you've signed an agreement that says it could be more"?

Hon. D. Lovick: I can perhaps provide this comfort: the amount is not a negotiated amount; it is, rather, based on particular invoices showing that this work had to be done.

[1635]

M. de Jong: I don't doubt that, and again, I don't mean to be argumentative. It's just that it seems to me that what the minister is saying is: "We are placing a cap on the amount of extra money we are going to pay." For that to be meaningful, it would need to be in the agreement, because one of the parties, if not the two other parties to this -- McLeod Lake -- won't be interested in our enabling bill. They will look to the provisions of the agreement. I guess it's a question of what takes precedence, then. Is it the enabling bill, or is it the provisions of the agreement itself?

Hon. D. Lovick: The bill gives us the authority we, the provincial Crown, require. And we're absolutely confident that we have sufficient money to do what we need to do. I should just point out, though, the matter of how large the amount might be in terms of stumpage. Frankly, I think site remediation is not a factor, based on what we know, but let's say the stumpage issue and beetle infestation.

Obviously the length of time it takes before the transfer is effected would be a significant determinant. Clearly if we were in any way apprehensive that, as time goes by, it would be more and more likely that we were going to be on the hook for more money, I think we would be pushing very hard to get the transfer to happen sooner rather than later. For obvious reasons, the other parties in the agreement also want to see the transfer happen sooner rather than later. So I think we're protected there.

M. de Jong: My last kick at this, I guess: are we protected because of

section 10 of the act? I know we're jumping ahead here, and I won't revisit this when we get there. Are we protected because one of the signatories to this agreement has said: "Irrespective of what's in this document, we are legislatively going to cap our obligation under any of the collective provisions of this agreement"? If that's the authority, can we do that?

Hon. D. Lovick: We don't think it's an issue. We have looked at the agreement. We're confident that we can indeed fulfil all our obligations. Therefore, as I say, we don't see this as an issue.

M. de Jong: I'm going to try this one more time. The minister may say, "Wait till you get there" -- that is,

section 10. I understand the first part of the section, and that is -- it's a logical

section to be there -- that whatever obligations you have assumed under this agreement, the minister responsible for the act is obligated to fulfil those obligations. The Minister of Finance has to pay them out of the consolidated revenue fund.

I am intrigued by the subsequent section, where the provincial government would say, "But in no case are we going to assume responsibility for more than $12 million," and the minister says: "Well, we're confident that that's enough." The other treaty bill we dealt with didn't include a similar capping provision. It seems to me that this is of . . . . Were a circumstance to arise -- and I must confess, I can't describe one -- that led to the province acquiring a further obligation, it wouldn't take long for a court to say: "Well, I'm sorry; that part of your bill is of no force and effect."

[1640]

Hon. D. Lovick: I must apologize to the member. I think my choice of words has probably caused this confusion, and I apologize for that. What we're looking at in

section . . . . It probably has something to do with the fact that we're zipping between documents.

Section 10 of the bill provides a spending authority and stipulates that $12 million is that spending authority. Insofar as that spending authority has been granted or will be granted to the Crown by this legislation, I call that a cap. That is clearly not a cap, except insofar as that is the authority being granted today. In the event that there were some cataclysmic occurrence, I suppose it is conceivable, albeit terribly remote, that one would need more than $12 million. That's essentially what it is; it's a spending authority. If I caused confusion, my apologies. I was a bit obtuse to figure out why the confusion.

[ Page 15882 ]

M. de Jong: The minister doesn't contemplate then holding up

section 10, subsection (2) in support for the proposition that: "Sorry, that's all we have to pay."

Hon. D. Lovick: That's correct, Mr. Chairman.

M. de Jong: Hon. Chair, I wonder if we might stand down for a moment, five minutes. He wants a break.

The Chair: A five-minute recess, yes.

The House recessed from 4:42 p.m. to 4:53 p.m.

[T. Nebbeling in the chair.]

The Chair: I call the committee to order.

M. de Jong: I wonder if we can move on to

article 8 of the agreement, which relates to the whole notion of lands in severalty. Without presuming to be an expert on this concept, which certainly does appear in the original Treaty 8 document of 101 years ago, I guess it can be best summarized as a process by which individuals are given the option to take property personally, as opposed to deriving whatever benefits the band might choose to transfer to them pursuant to the collectivity and its management of the broader land base.

It's ironic, in a sense, that a provision like this would exist and be available. I think there is no similar provision available under the Treaty Commission process. So it's ironic that 100 years later -- for that, at least, that part of negotiations -- one of those options appears to have been removed. It was a difficult choice historically, and in this chamber we have heard about the price that aboriginal people had to pay to exercise that option. I think the term that is generally applied is "enfranchisement." We're dealing with a derivative of that, in a sense -- an amended version of that.

[1655]

I think the questions that arise, and there are a series of them, are: on the relationship between individuals that choose to exercise this option -- how that changes their relationship with the band, if indeed it changes it at all. What other obligations do they assume pursuant to taking the lands? The process by which they will take those lands . . . . Those are a number of the questions, and maybe we can go through them.

First of all, as I understand it, the date by which members of the McLeod Lake band had to signal their desire to exercise the option contemplated in

article 8 has now passed; it was December 31, 1999. If that is the case, the minister can then indicate today with certainty how many band members have chosen to exercise that option.

Hon. D. Lovick: First, the member is correct that that date has now passed. The number we are working with is 30 or less. We heard 29 at one point, but apparently now there is some debate. It is worth noting, however, that people who have been close to the process have said to me that at the end of the day, they anticipate it will indeed be fewer in number than 29 or 30.

M. de Jong: Thanks. So if I understood the process, if you were a member of the McLeod Lake band and you wanted to preserve the option of availing yourself of these provisions, you had to make that declaration. The option exists to opt out. But we're dealing now with a maximum of 29 individuals and/or families who may potentially be seeking the land provided for under this section.

Hon. D. Lovick: That's correct. There are 29 individuals, apparently.

M. de Jong: Well, can we just for the moment deal with the other 350 or thereabouts who have chosen not to exercise that option? I'm wondering what the ministry's position would be in the event of a child of an adult member of the McLeod Lake band who now chose to forgo the provisions of

article 8 -- what the ministry's position is with respect to a claim that comes along subsequently from such a child upon reaching the age of majority, who says: "Hey, I'm not happy with the fact that my mother, father or guardian didn't provide me with this opportunity. I'd love to have had that

section of land and would have been happy to put it to work."

As I go through the agreement, I do note that the provisions dealing with

article 18 deal with . . . . Perhaps that's where the ministry or the government might seek to defend the notion that that child is released from bringing that claim. But I don't know what the ministry's position is in that respect.

Hon. D. Lovick: The government's position essentially is that we believe that parents have the right to make those decisions on behalf of their children.

[1700]

M. de Jong: There is certainly litigation around the issue, if not with respect to an adhesion agreement, I think with respect to treaties, at least, and certainly other legal contexts. I guess the question that flows from that is: is the minister able to offer juridical support for the government's stated opinion?

Hon. D. Lovick: Well, let me say first that we are indeed satisfied with the position that I have enunciated. But because I know the member is inviting a commentary, I'll offer it now. First point: I don't believe there's anything that could have been put into this agreement that would prohibit or bar McLeod Lake Indian band children from bringing future claims that might contest the election that their parents made. Now, I don't think one could ever draft an agreement that said: "You, the children, will never have any comeback." You couldn't do that.

It is theoretically then available for them to go to court, just as it is theoretically quite conceivable for the courts to review decisions that have been made by parents acting on behalf of their children. I am advised by our staff, legal counsel and others that a court would have to be either convinced that parents don't have the authority to make this type of decision or be convinced that the evidence goes against the presumption that parents are indeed in the best position to decide what is in their children's best interests. Needless to say, if the latter were invoked, then obviously a whole bunch of our legal edifice in this country and society would also be in challenge.

M. de Jong: I wasn't questioning the right of anyone to bring any sort of action that we can contemplate. I just wanted to make sure I understood the government's position, the date

[ Page 15883 ]

for election having now passed. It is the government of British Columbia's position that, absent a court decision directing them otherwise, the government will not be entertaining any future attempts to secure land individually pursuant to

article 8. Have I correctly stated what the government of British Columbia's position is?

Hon. D. Lovick: That is correct, Mr. Chairman. He has.

M. de Jong: So we've dealt, then, with those 358 members of the band. Let's talk about the 29, potentially, that have signalled that they may wish to engage in or take these lands. They are going to be involved in some negotiations over the next couple of years. Those negotiations will take place on an individual basis, as I understand it, pursuant to the agreement.

Then there will be a land selection process. Does the ministry have a sense of where those lands -- and it could potentially be a sizeable chunk of land -- are going to come from? Are they all contemplated to come from the Carp Lake region? Am I reading the agreement correctly when I draw that conclusion?

Hon. D. Lovick: We believe that it is in the interests of all the parties connected to the agreement to endeavour to locate lands that are representative of the McLeod Lake Indian band traditional territory, rather than go someplace a long way away. Obviously there is no guarantee that one can do that, but that is certainly the intention on the part of our government. Moreover, we think it's something that the other parties would also agree to.

M. de Jong: Is it fair to say that the lands would be within the claimed traditional territory as set out in

schedule A?

[1705]

Hon. D. Lovick: That's so.

M. de Jong: Let's go through a couple of things, then. I decide, as a member of the McLeod Lake band, that I'm going to take some land. I have those negotiations; my land is selected; and the transfer takes place. I take that land; I take fee simple title, as I understand it. Let's start there: do I take the land in fee simple?

Hon. D. Lovick: I believe it's safe to say that severalty land by definition is fee simple land.

M. de Jong: I'm aware that there is the overriding caveat . . . . I'll want to come to that in a moment. So I take that land. Am I subject, then, as the owner of that land, to property tax in the way that other British Columbians would be subject to a property tax?

Hon. D. Lovick: Correct.

M. de Jong: I had received information that indicated that there was some disagreement around that latter point -- that that was the provincial position. Maybe the easiest question, or the easiest thing to do, is to ask: is there support for the proposition that the minister has just made in this agreement, or is that simply the provincial government's position subject to subsequent negotiations?

Hon. D. Lovick: I have explained the position that we the provincial government take.

M. de Jong: Has McLeod Lake signalled to the ministry that they take a different position?

Hon. D. Lovick: No.

M. de Jong: Is that what took place with other Treaty 8 lands where individuals took land in severalty? They pay taxes; they are subject to provincial taxation. Is that consistent through the ages?

Hon. D. Lovick: I have to respond by saying, to the best of our knowledge, no. Just to qualify, if I might, why we say that . . . . We simply don't have that information, but I think that's in large measure due to the fact that that decision would have been made 100-plus years ago.

M. de Jong: I appreciate that, but if the province's position today is that if you choose to take the land individually, as provided for in

article 8, and part of the terms that you agree to is that you will be taxed on that land by the province the way other land owners are taxed . . . . The response to that from the person taking the land is: "Well, hang on; under Treaty 8 where that's happened in the past, our ancestors have been exempt from those taxation provisions." It seems to me there's a pretty strong argument to be made.

Hon. D. Lovick: I guess the best way for me to answer the question is to simply say that we the province take the position that these are the rules, should you choose to acquire your land on the fee simple basis in severalty. We will endeavour to carry out that conclusion, and in the event thereafter that the affected individuals decide that they challenge us, then I guess it would be a matter ultimately left to the courts to determine. Our position, I think, is very clear. Lands in severalty are fee simple lands and therefore subject to the same kind of property and taxation arrangements as other fee simple property owners.

[1710]

M. de Jong: Maybe I'm barking up the wrong tree here. Is that set out in attachment B, which I think is a description of the mechanism by which this whole lands in severalty option can be exercised? Maybe if it's set out in attachment B -- I don't recall seeing it -- then that's the end of the issue. My impression was that, in spite of taking that position, the government didn't lay that out clearly in the agreement.

Hon. D. Lovick: What we're talking about is simply a process whereby, if individuals choose land in severalty, then we the Crown would transfer that Crown land to fee simple ownership status, the same way we transfer any other piece of Crown land that we sell to an individual or otherwise transfer or deed to an individual.

M. de Jong: I'll come back to this in a moment. It's nice to describe it in those terms. But there is this overriding limitation on title that the minister and I don't have to contend with when we take land. That is, I can't sell it. I can't sell it without the member of the band who takes this land. I think that provides that individual with a pretty compelling argument that he or she is taking something less than full title and that these lands are still somewhat different.

[ Page 15884 ]

I want to come back to that, and the thing I would say on the point that we're discussing is that if it is that patently obvious, then perhaps it's something that should be . . . . Maybe that's what the minister is saying -- that at the time the transfer takes place, it'll be laid out in a negotiation between the individual and the Crown in the right of the province of British Columbia that that member takes these lands subject to the usual taxation provisions. If that's how these agreements are going to be structured, then that will address that taxation issue.

Hon. D. Lovick: That is indeed what we think will happen, and I am advised by staff that that point has been made clear to the individuals who are contemplating taking land in severalty.

M. de Jong: Let's talk about the relationship between the member of the band who chooses to exercise rights under

article 8 and the rest of the band. Although I haven't warned him, I listened with interest as today's minister and the former minister talked about this in, I think, the estimates debate -- although it may have been second reading debate.

The former minister described, I think effectively, the trade-off that took place and the notion that the person in 1899 who chose to exercise this option was really forgoing a great deal in terms of his or her relationship with the band -- access to whatever services might be available with the band. That, I am led to believe, doesn't exist in the same way here. It's a bit confusing in the sense that the whole notion of lands in severalty seems to contemplate this idea of individualism and severing, to some extent, the relationship with the band -- with the Indian Act administration. That is how it was proceeded with originally, and this will be somewhat different.

I'll introduce the topic in that way. I must confess I think the former minister will articulate some of these issues much better than I, and I will again listen with interest. The issue that I will want to come back to relates to that which is set out in 8.5 and also, I think, in

section 9 of the actual bill, which is the restriction on subsequent transferability of the land. I think the minister knows that I am troubled greatly by that provision. So that's my introduction of the subject.

[1715]

J. Weisgerber: I continue to have an interest in the topic as well. As I believe the minister described in our last round of discussions, while there was still some uncertainty about the relationship between the individual and the band, all of the benefits that flow to an individual under the Indian Act would continue, in this case, to flow to that individual band member, but involvement within the band was questionable. Is that still the situation?

Hon. D. Lovick: I started to leap out of my chair, and I was restrained in answering the question. I wanted to say: "But yes, indeed, the member is absolutely correct." But the caveat and the cautionary note I received is: "except that the bands may decide" -- okay? -- "and has the power to make some determination in that regard." The parallel that I use in trying to get my head around this is essentially that taking your land in severalty is analogous to people who live off-reserve. They are still band members, and as we know, recent court decisions have effectively said that they also have a say in band election.

Beyond that, what they effectively do is that they move into another society, generally speaking, thereby accessing the rights and services and so forth of the different society from the first nation one. I think that analogy still essentially obtains. It's essentially the same thing as living off-reserve, if you take your lands in severalty. With that explanatory sidebar, the member's correct.

J. Weisgerber: Not wanting to tread too much into the territory of the opposition critic, I continue to be curious about the notion of a caveat on the property -- something that would protect it from alienation. I think the reasons for that are quite obvious. Those provisions are rather obliquely referred to in the old, original Treaty 8 document. Yet from my life on the Prairies, I'm not aware of property that continues to be identified as land taken in severalty and still administered by the federal Crown.

Are there in the established Treaty 8 areas -- the Peace or northern Alberta -- examples of land, quarter-sections of land, taken in severalty where they continue to be in some quasi-status -- where they're not fully fee simple lands, and the Crown won't allow them to be transferred? Or does this caveat have some time limit on it?

Again, I say that I lived most of my young life in the Prairies, and I think that one would have been aware of something the equivalent of railway land, if you like, where it had a different title structure. Does anyone have any anecdotal knowledge about land that was taken severally, perhaps 100 years ago, and what the status of that is today?

Hon. D. Lovick: Let me start with the third question, Mr. Chairman. No, I don't think I have any up-to-date anecdotal evidence -- or historic anecdotal evidence, for that matter. We are not aware of any individuals in B.C. at the moment who are pressing for that kind of treatment -- the kind of scenario the member depicted in Alberta.

Secondly, the first question or the second question had to do with time limits, and no, there is no time limit.

J. Weisgerber: That would have been what I would have first assumed. I would assume that the caveat would go on the property and would stay there in perpetuity.

One would have assumed that the same mechanism would have taken place 100 years ago, when undoubtedly people chose enfranchisements and took land. Therefore there must be, across Canada, in other parts of Treaty 8, possibly in northern British Columbia, northeastern British Columbia or in northern Alberta or northwestern Saskatchewan, lands that were taken severally and that continue to have that caveat in place. Yet I've never heard an example of that, and I wonder if in fact there are examples of it.

[1720]

Hon. D. Lovick: I am advised by staff that we just don't know.

J. Weisgerber: Fair enough. I don't know, and I have no reason to expect anybody else would. I just thought perhaps . . . .

It moves, I think, into the area that the opposition critic was moving toward. I hesitate to steal his thoughts. But if indeed this land is going to be subject to taxation, and if there

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is a caveat on it which prevents it from changing ownership, surely the only leverage that governments ultimately have, at municipal and provincial levels, is confiscation. If you don't pay your taxes, somebody confiscates your land. But if there is a caveat that says this land can't be alienated, surely, then, governments, both local and provincial, will be powerless to impose taxes on the land. How would you collect? If indeed the landowner said, "Hey, I'm not paying," what would you do? What remedies do you have? Ultimately you have to have a remedy, if you're going to be able to manage a tax system.

I see an impediment here, a kind of serious flaw in the thinking, unless there is some mechanism that says: yeah, the province, after ten years of arrears or something, can in fact seize the land for taxes, as they would with ordinary fee simple title.

Hon. D. Lovick: I'm very reluctant to bite on this particular apple, simply because it's truly in the realm of the hypothetical.

I think the only point I would make is that ultimately it's the call of the federal government, in terms of whether or not to alienate the land. They're the ones that will ultimately adjudicate. If it were the circumstance that the member outlines -- namely, that somebody has effectively said, "No, I'm not going to pay taxes. You can't do anything about it" -- I think at that point the federal government could be persuaded to do something about it. But that's as far down the road to hypothesis as I want to travel.

J. Weisgerber: The minister will know that I'm often easily put off by suggestions of hypothetical questions, and I try to avoid them. But I don't think that someone resisting paying taxes is particularly hypothetical. If you're going to tax 30 individuals, given the complexities of this situation, I don't think this should be hypothetical. If government -- either the province or the federal government -- doesn't deal with this issue up front, then it's naïve in the extreme. I just don't at all buy that it's hypothetical, any more than any provision of a treaty would be unnecessary if one said: "It's hypothetical that the issue will arise; therefore we'll deal with it when it arises."

The question of how you collect taxes and what kinds of levers the tax collector has over the property, I would argue, is anything but hypothetical, and it represents a serious oversight if they haven't been dealt with.

Hon. D. Lovick: We negotiated this agreement on the basis of making it very clear to our federal counterparts that if people take the land in severalty, it will be subject to taxation. As far as we were concerned, and are concerned, that ends the matter. If indeed something of the shape and texture of the story that the member describes were then to happen, we would deal with it at that point. But as I say, I think our position has been very clear. Moreover, it's absolutely fair to say that those who have elected to take their land in severalty have certainly been advised of what the rules will be for landholding in that form.

J. Weisgerber: Let me finish by saying that if a person decided not to pay tax, then it would seem to me that there would be only two or three remedies: the province could forgo the taxes, the province could attempt to seize the property for non-payment of taxes, or the federal government could step in and make the payment on their behalf. I don't see a lot of other options.

I am very much surprised that something as obvious as that wouldn't be addressed in the treaty itself. If you're going to tax the land, you've got to have a mechanism to collect taxes. I don't think that at any time we as legislators ever contemplate imposing a tax that we can't collect. Implicit in every taxation bill that comes before this House is the concept that there is a mechanism to collect it.

To simply allow a question to be there and say, "We'll deal with it if there is a failure to pay . . . . " Quite honestly, I don't think it's good enough. It may well be a disservice to the people who are participants in the decision to take land severally and perhaps indeed a disservice to those who attempted to persuade people not to take land severally.

[1725]

Hon. D. Lovick: Surprise, surprise -- I'm going to say that I disagree with the member. I don't mean to make light of the point, but the process now will be a negotiation carried out between ourselves, the federal government and those individuals within the McLeod Lake band who choose to take land in severalty. In the process of choosing that land selection, in choosing to do that, they will be part of a negotiation with us, during which we will put on the table something that says: "If you choose to take your land in this form, then you will agree to pay taxes."

We have in effect a contractual arrangement, then, with those individuals. That, it seems to me, provides us as much certainty and security as just about anything else that we can do in terms of society and social contractual obligations. The member may disagree, but that's the clearest enunciation of the position I can present. Personally, I think it settles the matter rather well.

M. de Jong: I think the point raised by the member for Peace River South speaks not to a hypothetical but to a certainty, if we follow through on the likely course of events. Let me try it from a different perspective.

Interjection.

M. de Jong: The minister says: "Let me hear your argument." I'm not sure it's an argument. It is perhaps more an observation. That is that you look at this provision in the year 2000, and the thing that screams out at me is that it remains the ultimate expression of paternalism. Everything I thought this exercise was about -- that first nations people, particularly an aboriginal person who chooses to exercise the option available to them under

article 8, are as qualified, as able and should be as free to make decisions about his or her future and the future of their family and the land they have taken as anybody else . . . .

I don't think the discussion that the former minister had with this minister about where those lands are, in the prairies or elsewhere, in Treaty 8 where this has happened was entirely academic. If you are taking the land, surely you as a Canadian, as a British Columbian -- regardless of whether you are an aboriginal person or not -- are the owner in fee simple of land. Yet in this case, government is saying: "We don't trust you." How else do we read that provision?

[1730]

Yeah, it was in the original Treaty 8 document. But not only is there no attempt made here to alter or bring the

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document up to date on that point, as was done on some of the other points, but it's reinforced here. It's reinforced in the agreement, and it's reinforced in

section 9 of the bill -- that if you are an individual who chooses to take land pursuant to these provisions, your right to sell that land will be limited in a way that doesn't exist for any other person in the province. I find it -- and I don't mean to be overly dramatic -- offensive. Maybe the minister is going to say: "But you know, McLeod Lake doesn't find it offensive." I don't know.

I rather suspect that the McLeod Lake band is less interested in the affairs of people who choose to take land outside of the collective grant. But I wonder about those people who ultimately negotiate for the transfer of land under this provision. It might not be 29, it might be less than that. But I've got to believe that their preference would be to take that land minus this kind of limitation, this kind of caveat. And they won't have that opportunity. I'm curious to know what possible justification there could be in the year 2000 for including this limitation on the rights of people -- rights that we would otherwise take for granted.

Hon. D. Lovick: I don't for a moment question the sincerity of the member and what he perceives to be a legitimate concern.

But having said that, I have to remind him that there's a wondrous irony indeed when he worries about the fact that this is apparently paternalistic and then says: "I've got to believe that their preference would not be what they have chosen." In other words, the presumption being made, with all due deference and respect to my colleague opposite, is: "They didn't know what they were doing, because they aren't doing what I think they would have done if they were given a free choice." That, it seems to me, is pretty close to a classic definition, frankly, of something like paternalism.

I say that with all due deference and respect, because I don't mean to in any way be combative.

But if we want to talk about . . . . If we truly believe that the concept of self-determination is ultimately what treaty settlement is about -- whether that's an adhesion to a 100-year-old treaty or a new treaty, surely that is the constant: self determination, people's right to choose for themselves -- then we have to respect that choice, albeit the choice may be counterintuitive to the way we see the world.

We are not modifying Treaty 8; it's an old treaty. The member opposite is going to say: "Well, you are, because there aren't any references to suits of clothes and medals and things like that." He's right in that, because those things were perceived to be of less importance to the first nation than land and cash. They said: "Give us the cash and forget all that other stuff that was in the old treaty." But beyond that, it's their choice. They said, "This is the kind of treaty we want. We're happy with the old model of treaty-making. We're happy with cede, release and surrender," which, as I've said before, is anathema to most first nations in the province.

We aren't, in substantive forms, modifying the existing treaty. McLeod Lake chose to adhere to that old treaty; they did that. It's not up to us, then, to decide whether that is paternalistic, whether it's what we would want for ourselves. It's their choice; they freely did it. They chose their representatives; they chose their negotiating committee. Those people made the decision -- consciously, deliberately, well informed of the implications and the substance of the choice before them.

What I think about their choice -- whether I would like to have land that I think of as being fee simple and then discover that it is subject to a caveat by the federal government . . . . What I think of that is, frankly, irrelevant. It's their choice; they made the choice. That's the term of the old treaty, and that's what, quite frankly, this is all about: agreeing with them to accept the terms of an old treaty. They have freely chosen to do so; I am not challenging their right to do that.

[1735]

M. de Jong: Actually, more to the point, what I think is perhaps irrelevant; what the minister thinks is not. Let's test his theory. Did the province of British Columbia in these negotiations give McLeod Lake an option? Did the government say to McLeod Lake: "We won't insist on adhering to and modernizing this treaty. If you don't want that provision there, we won't insist on its presence"?

Hon. D. Lovick: I can't answer this specific question: in terms of this clause, this sentence, did they have a vote on that or something? What I can tell you is that it was negotiated. I can tell you that they had regular reports; it's been going on for years and years. They obviously knew what they were doing. I think we would surely all accept that proposition. And I can also tell the member that the 90 percent plus who turned out to vote, voted in favour of this agreement. They understand what severalty is; they understand what adhesion is. They understand what settlement of the litigation was.

My friend from the Peace and I were both up there in McLeod Lake for th