2004 Legislative Session: 5th Session, 37th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, MAY 4, 2004

Afternoon Sitting

Volume 25, Number 2

CONTENTS

Routine Proceedings

Page

Introductions by Members

Statements (Standing Order 25 B )

North Shore film industry

R. Sultan

Mental health awareness

V. Roddick

Summer music festivals in B.C.

Suffredine

Oral Questions

Impact of legislation on health

support workers

J. Kwan

Hon. G.

Bruce

Autism services in B.C.

J. Kwan

Hon. C.

Hansen

MacPhail

Hon. L.

Reid

Audit involving Doug Walls

MacPhail

Hon. G.

Collins

Softwood lumber exports to U.S. and

trade tribunal ruling

Suffredine

Hon. M. de

Jong

Avian flu and compensation for

poultry industry

P. Sahota

Hon. J.

van Dongen

Speaker's Statement

Rules for questions in question

period

Committee of Supply

Estimates: Ministry of Attorney

General and Ministry Responsible for Treaty Negotiations (continued)

J. Kwan

Hon. G.

Plant

Committee of the Whole House

Partnership Amendment Act, 2004

(Bill 35)

R. Sultan

Hon. G.

Collins

B. Kerr

Reporting of Bills

Partnership Amendment Act, 2004

(Bill 35)

Third Reading of Bills

Partnership Amendment Act, 2004

(Bill 35)

Committee of the Whole House

Forests Statutes Amendment Act,

2004 (Bill 33)

R. Visser

Hon. M. de

Jong

B. Kerr

B. Belsey

Suffredine

B. Bennett

MacPhail

Report and Third Reading of

Bills

Forests

Statutes Amendment Act, 2004 (Bill 33)

[ Page 10831 ]

TUESDAY, MAY 4, 2004

The House

met at 2:05 p.m.

Introductions by Members

W. Cobb:

With us in the House today — or in the precinct, anyway; I've seen one of them

— are three people from three different communities in my riding. First of

all, there's Mayor Donna Barnett. She's a tireless community worker who is here

today to take

part in the Community Achievement Awards. She was on the review

committee. Two are the recipients of that award: Jim Fraser from Williams Lake

and Barb Shaw from Cache Creek. I ask the House to congratulate them and help me

make them welcome.

Hon. L.

Reid: I'd ask the House to please welcome today 27 students representing

Richmond Christian School in my riding. They are accompanied by Mr. Roodnick,

and I'd ask the House to please make them very, very welcome.

Hayer: It gives me great pleasure to introduce 28 grade 5 students visiting

from Pacific Academy School in my riding of Surrey-Tynehead. Joining them is

their teacher, David Buzza, as well as several parent volunteers who have taken

time out of their busy

schedule to accompany them. Would the House please make

them all very welcome.

Hon. J.

Les: I have some very special guests in the House this afternoon. They are

my aunt and uncle. They are here from the Netherlands: my Aunt Henny and my

Uncle Jan Jordaan.

Interjection.

Hon. J.

Les: They are from the community of Veenendaal. The member for West

Vancouver–Garibaldi, of course, wants to enter into a debate about the correct

pronunciation. It is indeed my Tante Henny and Ome Jan. Inexplicably, this is

the first time that they've been here for a visit to British Columbia, but now

that they've tasted British Columbia hospitality, I'm sure they'll be back many

more times in the future. I would ask the House to please make them welcome.

J. Bray:

Joining us in the gallery today are two folks. One is an old family friend of

ours, Bill Robinson. The other is someone I've introduced many times before: my

father, Marshall Bray, QC They both enjoyed the hospitality of Mr. Speaker at

lunch. I'd ask the House to please make both these gentlemen very welcome.

Stewart: I'm delighted today to welcome two of our valuable research

assistants, Milan Pavlic and Rick Sousa. I've known Rick for a few years, as he

lived in Coquitlam prior to taking the job here in Victoria. I'm pleased to

announce that Milan and Rick will be married this Saturday, May 8, at my own

parish, All Saints Church in Coquitlam. I'm actually honoured to be a part of

their memorable day, as they've asked me to be organist for the service. I'd ask

the House to join me in welcoming and congratulating these two young people.

Chutter: Joining us today in the House is the mayor of Lytton, Chris

O'Connor, and the Lytton administrator, Tom Dall. Would the House please join me

in welcoming them.

Suffredine: I want to send best wishes to a great group of young competitors

today. We often stand up in the House and urge on our professional sports teams,

like the Canucks, in competitions where professionals are paid large salaries to

compete in those activities. The group I want to encourage today is a group of

dedicated competitors of a different kind.

Destination

ImagiNation is a competition for young people in problem-solving. The global

competition is in Knoxville, Tennessee, in mid-May. Seven hundred teams will

participate in solving five different problems and in different age categories.

After competing in regional and provincial competitions in B.C., the

under-age-15 team is from a small school called Brent Kennedy in the Slocan

Valley. They're raising money to pay for their trip, so I have pledged to

dedicate 25,000 Air Miles to them to help defray those costs. I want to send

congratulations and say good luck to Rylan Horwood, Javin Johnson, Christopher

Laramie, Bryden Chernoff, Nicole Amos, Rachel Troop and their manager, Gail

Mackie Richards.

[1410]

Hon. M.

de Jong: Roy and Janet Rolstone are longtime residents of Victoria. They are

involved in the textiles trade, the coffee trade and the popcorn trade, but

around here they are most notable for being the parents of my ministerial

assistant, their son Derek. They are visiting, and I hope the House will make

them welcome today.

Mr.

Speaker: Hon. members, joining us in the House from Aurora, Ontario, and

celebrating her ninetieth birthday today is Ethel Adamthwaite. Ethel is the

mother of our Deputy Sergeant-at-Arms, Dave Adamthwaite. Accompanying Ethel

today, also from Aurora, are her daughter, Nancy-Lee Sassur, and son-in-law,

Tony Sassur; her eldest son, Paul, from London, Ontario; and her

daughter-in-law, Felicity, from Victoria. Would the House please make Ethel and

her family welcome.

Statements

(Standing Order 25

b) NORTH SHORE FILM INDUSTRY

Sultan: I wish to report on our North Shore film industry.

[ Page 10832 ]

One bright

sunny afternoon a few days ago I attended an outdoor barbecue hosted by the

mentorship program of the Canadian Film and Television Production Association, a

sort of apprenticeship program for young professionals in the film industry. I

met an earnest young producer just finishing a documentary, a bearded director

who had left his shoes at home, and a beautiful and friendly young actress just

back from Hollywood where, I was assured, her startling good looks combined with

a college degree and five years of acting school marked her for stardom.

The

entrepreneurial enthusiasm of this crowd was contagious. It would have been

alien to ask, in their world, whether fair compensation involved a 40-hour week.

These people work for nothing for 100 hours a week on their dreams. Some of

them, Peter Leitch of Lions Gate studios assured me, would surely realize those

dreams. Others would simply transfer that winning attitude to endeavours outside

the film industry. Thus an accidental by-product is entrepreneurial development

in all sectors.

I learned

that our movie industry supports a $200 million payroll just on the North Shore.

It's a $1 billion industry in all of British Columbia, but not without problems.

Due to a shifting product mix, the Canadian dollar and aggressive tax-cutting in

competing venues from Iceland to Australia, B.C. film volumes will be down about

20 percent this year. That's one small but significant example. Due to Ontario's

better sales tax treatment, their cost of production gives them about a 1

percent cost advantage over B.C., and that hurts.

High-paying,

skilled-craft jobs need to be encouraged. Let's give these talented risk-takers

a hand when they need it. Film is the type of twenty-first-century industry

around which we can build the new and prosperous British Columbia.

MENTAL HEALTH AWARENESS

Roddick: Abraham Lincoln, Winston Churchill, Ernest Hemingway, Virginia

Wolfe, Oprah Winfrey, Leo Tolstoy, Marilyn Monroe, Kurt Cobain, Beethoven,

Vincent Van Gogh, Michelangelo, Vivien Leigh, Isaac Newton, Tennessee Williams,

John Keats, Sylvia Plath — people with mental illness make important and great

contributions to our society. That's why our Premier is leading the way to

breaking the stereotypes of people with mental illness by having appointed the

first-ever minister responsible for mental health.

In the past

three years our government has brought focus to mental health, but there's still

much more to do in public awareness and education. May 3 to 9 is Mental Health

Week. The Delta branch of the Canadian Mental Health Association held its gala

jewel of an evening fundraiser at the Beach Grove Golf Club last night, raising

more than $20,000. The Minister of State for Mental Health and Addiction

Services and myself will be in attendance this Thursday at the Delta Town and

Country Inn, when the branch conducts a community mental health forum. It's

opportunities like these that allow our communities to look at ways to support,

advance and strengthen mental wellness and mental health services.

[1415]

I would

encourage everyone to take

part in the many mental health week activities taking

place across the province this week, but also take some time to focus on our own

mental well-being and remind ourselves that mental health is just as important

as physical health.

SUMMER MUSIC FESTIVALS IN B.C.

Suffredine: Today I'd like to interest you and others in an emerging tourism

opportunity in the Kootenays. The Nakusp Roots Music Society is having its first

Nakusp music fest July 17 and 18, 2004. They've signed Randy Bachman, Dr. Hook,

Wide Mouth Mason and Trooper as headliners, with ten more groups to be

announced. If you want tickets, you have to act fast. There are only 2,000 seats

to be made available.

What a

great opportunity for a musical holiday in southern B.C. this year. As a first

stop, you could potentially get on your motorcycle, Mr. Speaker, and ride to the

Merritt Mountain Music Festival, which starts July 13; next stop, Nelson for

Streetfest July 16; on to Nakusp for July 17 and 18; then take a short break

perhaps to golf at some of the dozens of great golf courses, fish or explore the

back country or maybe visit the Ainsworth, Halcyon or Nakusp hot springs.

Still got

music on your mind? The Kaslo Jazz Festival is then July 31 and August 1. I

haven't touched many communities or the month of August, Mr. Speaker. There's a

motorcycle ride between Kaslo and New Denver where you and the member for Peace

River South would just love to let the wind blow through your hair.

Summer in

the Kootenays is a great time of year. It's a great time to see festivals like

this one. Starting to showcase B.C. is how we will get the benefit of the 2010

Olympics, and it won't be long before this is an event of Olympic proportion.

Good luck to the Nakusp Roots Music Society.

Mr.

Speaker: That concludes members' statements.

Oral Questions

IMPACT OF LEGISLATION ON

HEALTH SUPPORT WORKERS

J. Kwan:

The Premier, the Labour minister and the Health minister have spent the last 24

hours telling everyone that they're blameless for their botched effort at labour

relations with hospital workers. The Minister of Health's personal intervention

in crafting the back-to-work legislation contributed to the mess for patients

that his government has created. Will the Minister of Health stand up and offer

patients and their families an apology for deliberately inflaming the crisis by

insisting that the back-to-work legislation contained no caps on the

privatization and contracting-out?

[ Page 10833 ]

Hon. G.

Bruce: I think we all know that to be able to get a negotiated settlement,

you have to be at the table. Had all of the parties stayed at the table and

negotiated, as was the case in virtually 37 other public sector agreements, what

transpired last week need never have happened. To be able to get resolution, the

parties have to be at the table to work with one another. We've seen that's been

the case in this government by the other agreements that have been put in place,

and we can see at the end of the day that when reasonable people get together,

you can reach a solution.

Mr.

Speaker: The member for Vancouver–Mount Pleasant has a further question.

J. Kwan:

It is incredible that even now, this Minister of Health Services refuses to take

responsibility for the harm he has caused to patients by imposing the most

extreme piece of back-to-work legislation in living memory. It shows how

arrogant, how out of touch and extreme this government is when it comes to

forcing its health care privatization agenda on British Columbians.

The

minister professes to be concerned about patients. Last week he stood in this

House to answer a rehearsed softball question and cried crocodile tears over the

impact that job action was having on autistic children in British Columbia, but

it is his own government's policies that are hurting kids.

[1420]

To the

Minister of Health Services: how can he have the audacity to say he's on the

side of patients when wait-lists have gone through the roof, hospitals have been

closed, seniors have been split up and programs to treat autism have closed

down?

Hon. G.

Bruce: I think it's important to remember that just a little bit less than a

year ago, the government along with the HEU, particularly officials from the

Ministry of Labour, tried to work out an agreement which then would have made

the situation considerably different at this point. They actually reached an

agreement, which included a cap, which included all sorts of things that were

good for everybody. They took that to the membership of the union, and the

membership defeated it. Had that been approved, some of the impacts that the

members of the HEU right now are feeling wouldn't have occurred, but more

importantly, not one patient in the province of British Columbia would have been

impacted.

Mr.

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

supplementary.

AUTISM SERVICES IN B.C.

J. Kwan:

It just goes to show you, Mr. Speaker, that this government refuses to listen at

any time. The minister did not even answer my question. The question was clear

with respect to closure of services impacting patients and patient care.

Let's take

just one example of how this government treats patients. David and Monica

Marriot are the parents of a four-year-old child with autism, and they contacted

our office. Their son was scheduled to see a team of specialists at the Surrey

Memorial Hospital child evaluation clinic for a pre-kindergarten readiness

assessment program. Good news, thought the parents. The Marriots received a

letter last week telling them that the child evaluation clinic has been closed

down by the government.

Again, to

the Minister of Health Services: can he explain to David and Monica Marriot why

they should believe he is concerned about their welfare when his government is

denying their child proper care?

Hon. C.

Hansen: If you go back to three years ago when the NDP was still in power in

this province, the wait-list for autism assessment was 18 months. We have now

successfully brought the wait time for autism assessment down to about three

months. Thanks to the work…

Interjections.

Mr.

Speaker: Order, please. Let us have order in the chamber, and let us hear

the question.

Hon. C.

Hansen: …that's been done by the Minister of State for Early Childhood

Development, there has been a significant improvement in the wait time for

diagnosis and significant improvement in the treatment and programs that are

available to parents of children with autism.

MacPhail: The government changed the criteria of who's eligible for

services. That will reduce the wait-list. Here's what the Premier said. The

Premier promised not to rip up health care contracts. He promised more support

for children with autism and special needs. Let me quote him: "I think that

we have to be providing people with the opportunity to make sure their children

with autism get the kind of support they need." The New Era document

— a promise to "increase emphasis on early childhood intervention

programs for families with special needs children."

David and

Monica Marriot got another letter, besides the one they showed us today. They

got another one. Let's quote from that letter. This letter was sent to parents

last week, including Dave and Monica Marriot, from the Delta school readiness

program for children.

"The

program was originally formed with the idea that children with special needs

could best manage kindergarten setting in the public school system if they had

one or two years of preschool. The ministry has supported the program since

1974, but with recent financial cutbacks, it's one of the programs that may be

discontinued."

To the

Premier: why is he breaking his promise to children with special needs and

breaking his promise to David and Monica Marriot? They're listening to the

answer.

[ Page 10834 ]

[1425]

Interjection.

Mr.

Speaker: Order, please.

Hon. L.

Reid: I am pleased to rise today and tell you that more dollars have gone

towards the services for children with autism in British Columbia than ever

before. The Premier's expectation was that we would increase parental choice

around the services for children with autism, and we have done that in spades.

We have delivered on individualized funding in this province, we have delivered

on centre-based programming for children with autism in this province, and we

will continue to do that.

The member

opposite made a suggestion that, indeed, the criteria had somehow been

diminished around diagnosis. Absolutely untrue. Those criteria have been

expanded. More children than ever before are receiving a diagnosis of autism in

this province and are doing so in less than three months.

Mr.

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

MacPhail: Well, the parents of children with autism are listening to this

government, and I expect they'll be saying that what this government is saying

is simply wrong and is simply misleading. Whether it's breaking promises to

working people or breaking promises to children with special needs, the B.C.

Liberals have lost the trust of British Columbians. They're taking parents with

autistic children all the way to the Supreme Court of Canada to deny them

services. The extreme agenda is responsible for the climate of fear, distrust

and anger that's overtaken this province. Just this week….

Interjections.

Mr.

Speaker: Hon. members, order, please, on both sides of the House. Let us

hear the question.

MacPhail: The Attorney General refuses to take responsibility for the

actions his government is taking all the way to the Supreme Court of Canada.

Interjections.

Mr.

Speaker: Order, please.

Interjections.

Mr.

Speaker: Order, please.

Interjections.

Mr.

Speaker: Hon. members, order, please.

Interjections.

[Mr.

Speaker rose.]

Mr.

Speaker: Order, please! Let us conduct question period in a proper manner on

both sides of the House. It's time for the question now, hon. member.

[Mr.

Speaker resumed his seat.]

AUDIT INVOLVING DOUG WALLS

MacPhail: Just this week StatsCan reported that under this government, for

the first time ever…

Mr.

Speaker: Time for the question now, hon. member.

MacPhail: …B.C. has fallen to fourth place in average annual incomes.

To the

Premier: when can we expect that you actually reveal the report of services to

people with special needs — community living services? When are you going to

release the report — Mr. Speaker, through you — through the relative of the

Premier, a friend of the Premier? When is the report on Doug Walls going to be

released to the public to show just what happened to all that money for children

with special needs — not the version that the spin doctors out of the

Premier's office are going to release but the whole report, unedited? When is it

coming out?

Interjection.

Mr.

Speaker: Order, please.

Hon. G.

Collins: I am trying to discern the stream of consciousness that went into

that question, but if I can try and….

Interjections.

Mr.

Speaker: Order, please. Let us hear the answer to the question.

Hon. G.

Collins: I'll try and address….

Interjections.

Mr.

Speaker: Would the Leader of the Opposition please try to get control of

herself.

Hon. G.

Collins: I'll try and deal with the somewhat rambling points that the member

made. If I can try and do that in order, to the best of my….

Interjections.

Mr.

Speaker: Order, please. Order, please.

Hon. G.

Collins: It gets more weird in here day by day, Mr. Speaker.

With regard

to the issue of autism, this government is putting more money — not less money

— into au-

[ Page 10835 ]

tism, as was highlighted by the Minister of State for Early Childhood

Development.

Interjections.

Mr.

Speaker: Order.

Hon. G.

Collins: As the Attorney…

Interjections.

Mr.

Speaker: Order, please.

Hon. G.

Collins: …General said, it was the parents of autism who sued that

government when the NDP were in government.

Interjection.

Mr.

Speaker: Order, please.

Hon. G.

Collins: We're actually putting more money into autism, not less.

Interjection.

[1430]

Mr.

Speaker: Order, please. Order, please.

Hon. G.

Collins: With regard to one of the other disjointed comments she made in

what was a very rambling question, the fact of the matter is that in after-tax

take-home pay, British Columbia continues to be third in Canada. Actually, we're

number two in Canada, and we hope to be number one.

With regard

to the….

Interjections.

Mr.

Speaker: Order, please. May we please have some order in the chamber.

Otherwise I would ask the Leader of the Opposition to absent herself for the

remainder of question period.

Hon. G.

Collins: She might do that as soon as her questions are finished, I think.

The last

item dealt with the Walls report. We've answered that question a number of

times. As we've stated publicly, the process will be followed.

SOFTWOOD LUMBER EXPORTS TO U.S.

AND TRADE TRIBUNAL RULING

Suffredine: This is National Forest Week, and British Columbia is the

world's largest exporter of forest softwood products. We have $14 billion in

exports each year. The current U.S. lumber tariffs have meant large costs, a

financial imposition on mills in my riding and around the province. There was a

NAFTA panel ruling that came out last Friday, which appears to be good news for

all of those mills, but it doesn't appear to be over yet. Can the Minister of

Forests tell us what the latest NAFTA ruling means for producers in my region

and other parts of British Columbia?

Hon. M.

de Jong: Well, amidst other goings-on in the province, the NAFTA trade

tribunal did issue a very important ruling last week. It reconfirmed for the

second time that the U.S. International Trade Commission's earlier finding that

U.S. lumber interests were either injured or threatened by injury by Canadian

lumber imports is simply not supported by the evidence. That's a very

significant ruling for all of us in British Columbia. That decision, subject

only to a final three-week remand period, really knocks out the foundation upon

which the U.S. industry coalition has built its case.

I would

make this final comment. When that final ruling is announced, I think it's time

that the instructions be given that those tariffs cease being collected at the

border and the money that has been collected be returned to Canada.

AVIAN FLU AND COMPENSATION

FOR POULTRY INDUSTRY

Sahota: My question is to the Minister of Agriculture, Food and Fisheries.

The avian flu has devastated the poultry industry in the lower mainland, but

once again our communities have come together in time of crisis to minimize the

impact as much as possible. It is important that this government remain

steadfast in efforts to ensure that the cull and cleanup be as fast and

efficient as possible so families may once again depend on a thriving chicken

industry for a good living.

Is there

any progress in getting dollars into the hands of the people that rely on the

poultry industry to support their families?

Hon. J.

van Dongen: I can report to the House that the planned depopulation of the

poultry in the Fraser Valley is going well, and there are compensation payments

being made to producers under the Health of Animals Act by the federal

government. We also have a team of people, including various agencies, working

on the broader range of compensation issues. They have hired a consulting firm

with experience in the poultry industry to assess the economic damage. We

continue to do everything possible, working with our partners, to mitigate the

damage not only to producers but also to processors and workers in the industry.

[End

of question period.]

Speaker's Statement

RULES FOR QUESTIONS

IN QUESTION PERIOD

Mr.

Speaker: Hon. members, if you'll indulge me just for a moment, I do wish to

read from the standing

[ Page 10836 ]

orders which govern the conduct in this House,

section 47A on page 20.

I'll just

read a bit of it because I think we're losing sight of question period and its

intent: "There shall be a 15-minute oral question period at the opening of

each afternoon sitting." Subsection (

b) says: "questions and answers

shall be brief and precise and stated without argument or opinion." This is

for all members on both sides of the House. "Supplementary questions may be

permitted at the discretion of the Speaker. There shall be no supplementary

question to a question taken on notice." Subsection (d): "debate shall

not be permitted."

I recommend

it. It's recommended reading for everyone, if you can find your book. It's there

somewhere. Thank you very much.

[1435]

Orders of the Day

Hon. G.

Collins: I call Committee of Supply. For the information of members, we'll

be discussing the estimates of the Ministry of Attorney General and treaty

negotiations office.

Committee of Supply

The House

in Committee of Supply B; J. Weisbeck in the chair.

The

committee met at 2:37 p.m.

ESTIMATES: MINISTRY OF

ATTORNEY GENERAL AND MINISTRY

RESPONSIBLE FOR TREATY NEGOTIATIONS

(continued)

On vote 11:

ministry operations, $370,749,000 (continued) .

J. Kwan:

Prior to the lunch break, I asked the Attorney General whether or not the

Attorney General was consulted and agreed with the process followed in informing

and advising first nations of details of the partnership arrangement. The

Attorney General responded by saying he was involved insofar as cabinet was

involved and that he was part of the executive council.

Given that

answer and given that he wouldn't confirm whether or not the statement made by

the Minister of Transportation was true or not, I can only assume that the

statement made by the Minister of Transportation is in fact true, and it will be

up to the Attorney General to dispute it otherwise. According to the Minister of

Transportation on April 27, here's a list of the

summary of events that he said

was done by the government with respect to first nations consultation.

The

Minister of Transportation on April 27, 2003, said that on April 10, 2003, the

Premier and the former Minister of Transportation — and he actually names the

former minister — provided a letter to all first nations along B.C. Rail's

right-of-way to advise them of the government's decision to seek an operating

partner for B.C. Rail's freight railway. The process to engage an operating

partner involves a request for proposals to be issued in mid-May 2003.

The letter

advised that B.C. Rail officials would be contacting first nations chiefs and

councils to arrange meetings that would outline the process and inform first

nations of the steps being undertaken by the province. Then on April 15, 2003,

the B.C. Rail Company commences and advises an informed strategy with first

nations along the railway line with whom they have had a business relationship.

On June 9,

2003, all 25 first nations have been contacted and provided with the following

information: full information regarding the process components, time line, the

technical rationale behind the decision to seek a partner, an explanation of the

province's objectives in seeking a partner and a full accounting of the

financial situation of the B.C. Rail Company, including the province's interests

in the Crown.

On July 15,

2003, the B.C. Rail Company prepares an extensive package of questions and

answers for first nations as a result of their first round of meetings. From

July to October 2003, the B.C. Rail Company continues to meet with first nations

to discuss and clarify issues and questions raised.

[1440]

Can the

Attorney General tell us what part of the sequence of events I've put out that

he was involved in?

Hon. G.

Plant: I wasn't following all of the quotation that the member was offering.

The quotation, I assume, was from references and statements made by the Minister

of Transportation during the course of his estimates debate.

For the

most part, I actually don't think that the estimates debate is an episode from Perry

Mason . But let me say this. The first occasion on which I made a public

statement about any aspect of the obligations that might or might not be

triggered to consult and accommodate as a result of constitutional issues in

relation to the B.C. Rail investment partnership was when I made a presentation

at an open cabinet meeting in early December of 2003, at which time I made it

clear that there was, so far as I was aware, no formal consultation with first

nations undertaken by the B.C. government, having in mind

section 35 obligations

with respect to the B.C. Rail–CN partnership agreement. It was our view that

the partnership agreement does not trigger consultation obligations.

The member

referred to some actions in which the Minister of Transportation and his

predecessor and others are said to have engaged in the spring, I think, and

summer of 2003. I was not personally involved in participating in any of those

activities.

J. Kwan:

Well, isn't that interesting? The minister says that he was not personally

involved in any of the processes that have been outlined, yet you have the

Minister of Transportation saying that the Attorney

[ Page 10837 ]

General was consulted and agreed with the process followed in informing and

advising first nations of details of the partnership agreement.

Then you

hear the Attorney General say that the B.C. Rail deal doesn't actually trigger

first nations obligations. Isn't that interesting? The aboriginal communities

disagree with that particular statement from the Attorney General. In fact,

legal advice has been sought by the first nations community with respect to the

B.C. Rail deal. Let me just put some of that on the record. There have been a

couple of legal opinions sought by the first nations on this issue. Let me

quote, regarding the proposed merger of B.C. Rail with CN Rail, items that have

been identified to be of concern for the first nations community and therefore

of concern for the government, which is engaged in treaty negotiations.

[1445]

Issues

identified by the first nations community:

"We

wish to draw your urgent attention to information that the competition bureau

is bound to consider in rendering decision on whether or not to approve the

proposed merger of B.C. Rail and CN Rail. Aboriginal title and rights exist

along the B.C. Rail corridor and are constitutionally protected under

section

35(1) of the Constitution Act. The B.C. Rail line and other operations run

directly through the reserve lands of 25 indigenous communities in British

Columbia. The province has legal fiduciary obligations to meaningfully consult

with aboriginal peoples prior to undertaking or authorizing land transactions

that will impact the aboriginal title and rights.

"Indigenous

peoples and communities along the B.C. Rail corridor will be severely and

negatively impacted by this transaction. The province has not meaningfully

consulted with aboriginal peoples about the proposed merger or the sale of

B.C. Rail to CN and instead has engaged in fraud and deceit with the aim of

withholding the details of the agreement and its full impact from indigenous

people. The government of B.C. is not in a legal position to enter or complete

this transaction without engaging in good-faith consultations with indigenous

people."

From the aboriginal community's point of view with respect to the B.C. Rail

deal…. I have several other documents that I could put on the record, and I

may well do that.

I want to

go back, though, to the minister's comment that the B.C. Rail deal doesn't

trigger first nations obligations, from the government's point of view. How can

the minister make that statement when we have identified from the former

Minister of Transportation that some 44 bands actually have territory located

along the rail line?

By their

own admission, 25 bands actually have territory along the B.C. Rail line, which

the government is using in relation to the trust fund. How could it be that the

B.C. Rail deal does not trigger first nations obligations, from the government's

point of view?

Hon. G.

Plant: Not every transaction involving assets, goods, land or materials

triggers constitutional obligations to consult. The question whether those

obligations arise is determined on a case-by-case basis by reference to the

specific facts of the situation.

In this

particular case, the partnership agreement is a lease of the assets of B.C. Rail

and not of the land that B.C. Rail holds, so the transaction does not effect any

change in land ownership. As a result, it is our view that consultation with

first nations as a constitutional matter is not triggered.

As the

member herself knows, there are provisions in the agreement that she has spent

some time studying which contemplate that at some point in the future, there may

be dealings with respect to land. If and when those events take place down the

road, then different issues may arise with respect to the obligations, but they

do not arise now. In our view, they will only arise if and when those

transactions are triggered.

J. Kwan:

Well, let me just put on record, then, the legal opinion on this matter. Let me

just take this document out and put this on record. In the document, it actually

does cite: "It is the province's view that the RFP and the resulting

transaction" — this is relating to the B.C. Rail deal — "will not

have any material impact on aboriginal rights and title, reserve interests or

treaty rights." That's basically what the Attorney General just said.

The

document goes on to say: "It is important to note that the Attorney General

does not unequivocally say that the B.C. Rail–CN transaction agreement does

not infringe or affect aboriginal title and rights or reserve interests. Rather,

in this and other places the province takes the position that because there's no

transfer of title in land, there is no engagement of title and rights."

[1450]

Let me now

move on to court decisions that have been made relating to the legal obligation

of government to consult. "The law of aboriginal title and rights as

developed in the more recent cases — including Delgamuukw, Skeena Cellulose,

Haida nation and Taku River — provides strong support for an argument that a

change in control of B.C. Rail Ltd. and of that rail's operator in your

territory could trigger the duties of consultation and accommodation."

The legal

document highlights, in fact, an issue of consultation and the obligation to

consult by the government side. I'd like the minister to respond to this comment

made by Mandell Pinder, which is the law firm that has been hired to provide

this legal opinion to the first nations community.

Hon. G.

Plant: The member is quoting selectively from a document that appears to be

much more extensive than her readings would suggest. I have not had the

advantage of an opportunity to read the document in full and, therefore, decline

to intervene to express an opinion on any of the passages that she may be

reading from it.

J. Kwan:

The minister is saying: "Oh well, I can't comment on it, because I don't

have the full legal opin-

[ Page 10838 ]

ion on this issue." I've put on record a passage from the lawyers'

perspective in terms of the legal obligation, responsibility, of government to

consult. I do believe that the government has a legal obligation to consult with

respect to the B.C. Rail deal.

The

minister says: "I haven't seen the full document, so I can't comment on

it." Let me tell you, Mr. Chair, the first nations community has been

trying to get the government to respond to this matter. They have expressed

their displeasure with the government's action on the B.C. Rail transaction,

from all sorts of places. They've expressed their concerns to the government to

no avail. You know what? If the government continues to take this attitude, all

that is going to result is further confrontation, more challenges in the courts,

more uncertainty with respect to land claims and treaty negotiations and

settlements in British Columbia. That does nobody any good.

If the

minister says that the government's B.C. Rail deal does not trigger first

nations obligations, does the Attorney General then agree with the terms of the

actual deal being negotiated relating to the B.C. Rail deal? This is pertinent,

as I do believe that it has a relationship to the negotiation processes

involving first nations, having identified that 44 bands have territory along

the B.C. Rail corridor.

Hon. G.

Plant: As I heard the member, she was asking me whether or not I supported

the B.C. Rail investment partnership, and the answer is: without hesitation or

reservation, I believe it to be a wonderful opportunity for the people of

British Columbia.

[1455]

J. Kwan:

Does the minister think that to date, based on what the government has engaged

in and based on the fact that the Attorney General is part of the executive

council, he is satisfied with the consultation that has taken place with the

first nations community relating to the B.C. Rail deal?

Hon. G.

Plant: There are two aspects to that question, because the term

"consultation" has the potential for being used in a number of

different ways. I've already answered the question with respect to any

obligations that might arise as a result of

section 35 of the Constitution Act

of 1982 and any allegations of potential infringement of aboriginal rights or

title. I've answered that question.

The other

aspect of the transaction in which the word "consultation" could, I

suppose, be used is the extensive discussions we have had, led by officials in

my ministry, with the first nations who are the potential beneficiaries of the

B.C. Rail benefits trust. I've already spent a fair bit of time in the course of

these estimates explaining why I think that's a $15 million opportunity for 25

first nations to get dollars into their communities to help them with economic

development, cultural renewal or educational advancement. We've certainly spent

a fair bit of time in this ministry trying to help the first nations who are the

potential beneficiaries of that opportunity to understand what it means,

including understanding that the first nations benefits trust is not intended to

have, and will have, no impact on whatever constitutional obligations government

may have.

Although

perhaps it's not consultation in the same way that the member contemplates,

there has certainly been a significant amount of public discussion — including

some discussion, I think, that has taken place directly with first nations, but

I stand to be corrected on that — about the benefits that the B.C. Rail

investment partnership will bring to communities not just up and down the rail

line but all across the heartlands of the province.

The

northern development initiative represents a significant opportunity to provide

benefits to communities in regions that need that benefit. Anytime you're

looking at providing economic opportunities by building a head office,

committing to construct more railcars, improving container port facilities or

building roads, those are all potential economic opportunities — either in the

form of direct jobs for first nations members in communities up and down the

province and/or, in addition, opportunities to share in the economic development

that I think will be produced in those regions of the province as we take

advantage of the fact that we have the private sector investor committing to put

something like $5 billion into British Columbia to support and improve

transportation infrastructure.

I think

it's a great deal for all British Columbians, and when I refer to and speak

about all British Columbians, I am including first nations, particularly first

nations who live in communities that have borne the brunt of some of the

economic challenges that we've faced as a province over the last decade and who

stand to benefit from this investment in a very real and tangible way.

J. Kwan:

I'll get to the benefits trust in a moment, Mr. Chair.

[1500]

Notwithstanding

that, the minister actually didn't answer my question. I suppose this must be

rampant amongst cabinet members. They must have lessons or something where

someone sits them down and says: "Okay, here's what you do with opposition

members. When they ask a question of you, if you don't know the answer or don't

want to answer the question, proceed to not answer the question and then say

that you've answered the question. Then say again that you have answered the

question for the last time, and then proceed to not answer the question

again."

Alternatively,

engage in what the Attorney General is now doing. Make up a question that you

want to answer, go on at length about it and then proceed to not answer the

question that was put to you. I think there must be some sort of lesson that

cabinet members are required to attend — mandatory attendance — on the way

in which they deal with questions put to them because to date, three years'

worth of estimates now, that's what we see.

[ Page 10839 ]

The

Chair: Member, would you please take your seat for a second. Let's keep our

questions relative to this ministry. You're just rambling on. What you're

talking about, what cabinet is doing, is absolutely irrelevant to this debate.

Keep your questions relative to the Attorney General's ministry, please. Carry

on.

J. Kwan:

Thanks, Mr. Chair, for that helpful guidance. Thank you very much.

The

Chair: You're very welcome. Please proceed.

J. Kwan:

I must say it would be most helpful, as well, if the Attorney General just

actually answered my question. Then I wouldn't have to draw comparisons of what

this cabinet is doing. I put a question to the minister with respect to the

consultation process and whether or not the Attorney General agreed with the

terms of the actual deal being negotiated and whether or not he feels that

consultation process has been sufficient with the first nations community. I

didn't hear an answer from the minister.

The

government is now having to deal with the fallout of a leaked document, the

revitalization agreement, which states that once this five-year period expires,

the tenant can send notice of discontinuance. It states in

section 35(a):

"In

the event of a discontinuance at any time during the term or any renewal

thereof, this lease shall automatically terminate as to the portion of the

leased property on which the discontinuance has occurred, including all

subleases, licences and sublicences herein granted in respect of such portion of

the leased property, the discontinued lands.

"At

any point following delivery of the notice of discontinuance, the

landlord would have the right in his sole discretion to deliver notice of his

intention to transfer all of its rights, title and interest in such discontinued

lands to the tenant on an as is, where is basis for a dollar. The event that the

landlord exercises the option to transfer all of the landlord's rights, title

and interests in the discontinued lands…."

This

means that lands once under control of the Crown can be transferred to a private

company for a dollar. This can happen by sole discretion of the tenant, which is

CN, or after a lease expires. This is Crown land that could have been used for

treaty negotiation. As we all know, the referendum principles that this

government and this Attorney General decided to go through with, subjecting

minority rights to the vote of the majority — this ill-fated referendum….

Referendum principles approved in the year 2000 do not allow private properties

to be used for settlement resolution.

When the

deal was being negotiated, were first nations groups made aware that the deal

could potentially last 990 years?

Hon. G.

Plant: Allow me for a moment to respond directly to the member's question in

two respects. The member said that the referendum principles, which she claimed

to have some familiarity with — and she said this very clearly and

categorically — "do not allow private property to be used for settlement

resolution." Those were the member's words, Mr. Chair, and I thought what I

would do is respond directly to the member's reference to those words. I'm going

to do so by examining the treaty negotiation principles that were the principles

endorsed by the 800,000 British Columbians who responded to the referendum.

[1505]

There is in

fact no such principle in the referendum. The member's suggestion that such a

principle was contained in the referendum is categorically false and inaccurate.

I will read the closest thing that comes to a relevant referendum principle in

my continuing attempt to respond directly to the member's question and the words

used in her question.

The first

referendum principle read — and it continues to guide government, Mr. Chair

— as follows: "Private property should not be expropriated for treaty

settlements." At the time the referendum was commenced, I was very clear on

the floor of this Legislature — and for several weeks was consistently clear

in travels around the province, in meetings with editorial boards, in debate on

the floor of this House — that the first referendum principle was exactly what

it was intended to do — that is, to ensure that government avoided the

expropriation of private property and that the referendum principle at no time

was intended to preclude the possibility that private land could be acquired on

a willing seller, willing buyer basis in order to ensure that we could do the

work we need to do as government to collect and assemble the lands that might be

necessary to achieve treaty settlements. Indeed, there have been some

acquisitions of potential treaty settlement lands on a willing seller, willing

buyer basis during the last year or so as we have tried to reach the point where

we have final agreement negotiations.

I have

listened with interest as the member has attempted to make the point that she

just made about that clause in the revitalization agreement, and I am afraid to

say that it is completely without substance or foundation. It is, first of all,

a misreading of the clause. Secondly, with respect, her attempt to find the

principle in the referendum along the lines that she has identified fails

because there is no such principle.

The member

then asked me a question about the activities undertaken during the run-up to

putting this deal together. As the Minister of Transportation made clear in his

recitation of the sequence of events when he discussed the matter in his

estimates, those activities were undertaken by officials of B.C. Rail. They were

not undertaken by officials in the treaty negotiations office or by Ministry of

Attorney General officials. I have also, in a previous question, made it clear

that I had no personal involvement in any of those activities.

I think

that represents an answer to the member's question.

J. Kwan:

That's comforting. The minister is now on record to refute what the Minister

of Transportation had said, and that is that the Attorney General was

[ Page 10840 ]

involved in the process on the B.C. Rail deal with the first nations

community. We now know that is not true, according to the Attorney General, who

said he had no involvement whatsoever in that process. Well, I'll have some

questions with respect to that.

Let me just

turn for a moment to some of the comments made by the Attorney General. The

referendum dealt with issues around private lands. It's true there are issues

around expropriation, but what we're talking about here with the B.C. Rail deal

is this. Through the leaked document, it has now been discovered that the

government through this deal could actually see a situation where public land

can be reverted to private land for a dollar.

[1510]

As we know,

public land that we're dealing with along the B.C. Rail line…. There are,

according to the former Minister of Transportation, 44 bands who have

territories along the B.C. Rail B.C. line — 44 bands who may raise issues of

title with their traditional territory along the rail lines. Given that the land

that was once controlled under the Crown can be transferred to a private company

for $1 at the sole discretion of CN or after this lease expires, it has full

ramifications for treaty negotiations and for those 44 bands in terms of their

land title claims — full ramifications.

Given that

government actually has a provincial policy for consultation with first nations,

which this minister is responsible for, you would have thought that he would

bother himself to be involved in the process around the CN deal with first

nations. One might have thought that. But the Attorney General just confirmed on

record that he has nothing to do with that process. Isn't that interesting? Then

presumably first nations groups were not made aware of the deal that could see

public lands turned over to private interests in as little as five years. One

can only assume that is the case. Will the minister confirm that?

Hon. G.

Plant: First of all, Mr. Chair, let me be clear about one thing. When the

member attempts to characterize what I've said, I'll stand by what I said and

not by her attempt to characterize it. Secondly, I appreciate the fact that she

has abandoned the attempt to connect the treaty referendum principles to this

debate. Thirdly, I want to be clear about some aspects of this transaction that

have become part of the public debate lately, as we wait for the moment when

government is going to be in a position to publicly disclose the terms of the

agreement for this B.C. Rail investment partnership.

The member

quotes from a passage or a term of the agreement that makes it clear that there

is the possibility that at some point down the road, there may be some

transactions affecting land. That, to me, is worth pausing on for a moment. That

is, these potential dispositions of land do not take place at the time of the

agreement. They are potential dispositions that could take place later — five

years down the road, 25 years, 50 years or whenever. If those dispositions take

place — it's a big "if" — then at that time, the parties to those

transactions will have to examine the state of the law around the obligation to

consult and accommodate the details of the potential transaction, and they'll

have to determine what their obligations are. But those obligations don't exist

now just because there is an agreement that provides for something to happen

down the road.

[1515]

The Forest

Act contains clauses in it that contemplate the possibility that cutting permits

may be issued under timber licences or tree farm licences. It's really when

those cutting permits or perhaps other documents related to them come into play,

when the potential for actual infringement comes into play, that the question of

whether obligations exist comes into play. That is another example of a

situation where there is, in the law or in an agreement, a provision that

provides for the possibility of something happening down the road. When it

happens down the road, then whatever obligations the parties have at that point,

as a matter of general law or specific to the agreement, will have to be dealt

with at that time.

Johnston: I seek leave to make an introduction.

Leave

granted.

Introductions by Members

Johnston: Joining us in the House today are 30 grade 5 students, dressed

very sharply in their red sweaters, from Corpus Christi Elementary School in the

riding of Vancouver-Fraserview. They're accompanied by teachers, Ms. Olympia

Monteiro and Mr. Riccardi. Also with them are parents Cedric Vaze, Lolita Lore,

Kelly Locante, Tess Bie, Angela Sison and Sonja Cristante. Would the House

please make them welcome.

Debate Continued

J. Kwan:

Let me just be clear on the record. I did not abandon the argument around the

referendum principles on treaty rights. With the issue around aboriginal lands,

as the minister well knows, the first principle is that private properties

should not be expropriated for treaty settlements. As the minister well knows,

through the CN deal, public lands could be reverted into private lands, in which

case there is a real issue with respect to treaty negotiations and the land

title claims that aboriginal communities could have when that happens. Those two

things are intrinsically linked, and the minister knows that very well.

In fact,

the aboriginal community takes issue with what this government has done, and

they take issue with what has been now leaked to the community on this 990-year

deal and with the possibility that public Crown lands could be reverted to

private lands for only a dollar. The Union of B.C. Indian Chiefs has written, as

I mentioned earlier, to the competition bureau calling for a halt of the B.C.

Rail sale. The Union of B.C. Indian Chiefs lists six reasons why the deal should

not go through. I put that on the record earlier.

[ Page 10841 ]

The

minister is insisting that the first nations rights and title are not affected

by this deal. The government stated in its open cabinet document from December

8, 2003: "As the B.C. Rail rights-of-way, railbed and track will continue

to be owned by British Columbia Railway Company, a provincial Crown corporation,

issues of rights and title will not be addressed as part of this investment

partnership. The essential operating business will continue under CN, subject to

an exclusive 60-year operating lease of the track, which is renewable for

another 30 years."

What we now

know is that the statement I just put forward is simply not true. The

revitalization agreement clearly shows that the lease can be extended to 990

years by the sole option of the tenant, CN. Fifteen 60-year terms can be

extended by the tenant.

The

agreement also explicitly states that rights and title — title to discontinued

lands — can be transferred to CN for a dollar. No first nations consultation

or accommodation is built into this deal. By the minister's own admission that

the deal does not trigger first nations obligations — he said, Mr. Chair —

this deal flies in the face of the legal obligations to consult and accommodate,

as well as common-law precedents. The Title and Rights Alliance is opposed to

the deal, based on the utter lack of consultation and accommodation with first

nations in this deal. They were opposed to the deal before the real details of

the sale were released.

[1520]

The Seton

Lake band also has reservations about this deal. Let me just put on the record

part of their press release. In the formal notice to government written on May

10, the chiefs of the Lillooet tribe declare: "We are the rightful owners

of our tribal territory and everything pertaining thereto." This historic

document also addresses the trespasses of the railway through the territory. It

stated: "We also wish to protest the seizing of our lands…against the

building of railway depots and sidings."

Chief Garry

John adds: "We have been trying for 93 years to settle long-outstanding

issues with the province and B.C. Rail. These issues have developed since our

lands were taken for the very railbed that is now being proposed for lease to CN

for a 60-year period." Of course, as we now know, that lease can extend to

990 years, and at the sole discretion of the tenant, they could actually sell.

The government could sell this public land for just a dollar, reverting it into

private lands and therefore impacting the treaty principles undertaken by the

referendum.

Let's be

clear in terms of the ramifications of the government's action with the B.C.

Rail deal. There could be huge ramifications in the future — court challenges

— if the government does not do the right thing, the legally obligated thing,

and that is to consult with first nations. By the minister's own admission, no

consultation has been done. The government doesn't even see that the legal

obligation is required under this deal at this time, and that will result only

in uncertainty for treaty negotiations and settlements and for economic

activities for British Columbia.

During

debate over Bill 89 from last year, the former Minister of Transportation and

the member for Prince George–Omineca talked about the B.C. Rail land holdings

outside of the B.C. Rail corridor. The former minister said a process was being

put into place by which properties extending outside the rail corridor would be

subdivided and distributed. She said the properties could go to communities,

current tenants of the lands or first nations. This was supposed to occur before

the B.C. Rail deal was implemented.

Is the

Attorney General aware of such a process being put in place now?

Hon. G.

Plant: I have listened to the member refer expressly to a Hansard

extract of a debate with the Minister of Transportation about a piece of

legislation passed last year. I suggest, with respect, that if she wishes to

know what it is that government is doing in relation to that matter, she should

pursue the issue with the Minister of Transportation.

J. Kwan:

Presumably, this minister would know what this government is doing pertaining to

issues that relate to first nations and treaty negotiations. The minister knows

full well that first nations are being impacted by the B.C. Rail deal.

How many of

the parcels of land have been subdivided and given to first nations?

Hon. G.

Plant: I assume from the previous question that the subdivision she is

referring to would be some action by B.C. Rail, and that would be an issue that

I think she should pursue with the Minister of Transportation, who is the

minister responsible for B.C. Rail.

[1525]

J. Kwan:

Unbelievable. You have the Attorney General, who is responsible for treaty

negotiations. You have the Attorney General, who is responsible to ensure that

across government this provincial policy for consultation with first nations is

actually being implemented, and the Attorney General doesn't even know what's

going on with this deal. He has not been involved in the process, by his own

admission. By his own admission, he feels that the first nations obligations

have not been triggered with the B.C. Rail deal. He doesn't know whether or not

land has been subdivided, and he doesn't know whether or not the first nations

are involved in that. Isn't that interesting?

Well, you

know, Mr. Chair, the Premier's estimates are coming up after the AG's. The

opposition will be putting these questions to the Premier, and I will put the

Premier on notice now. I expect answers from the Premier. He is the head of the

executive council. Where his members of cabinet do not know the answers or could

not answer questions, I certainly expect the Premier to be able to answer these

questions or direct his executive council to answer them. We the opposition will

be putting these questions, then, to the Premier.

The first

nations benefits trust — who administers the trust fund?

[ Page 10842 ]

Hon. G.

Plant: The trust fund does not yet exist, so it is not being administered.

J. Kwan:

Who does the government intend the trust fund to be administered by?

Hon. G.

Plant: By the first nations participants in the fund.

J. Kwan:

I want to confirm how the trust fund works. It is a fund for one-time grants,

and it is not a $50 million base fund in which interest will be paid out like

the First Citizens Fund. Is that correct?

Hon. G.

Plant: The fund does not yet exist, but the intention is that it will be a

one-time grant. As I have explained, I think, in earlier discussions in the

estimates, it is different from a fund like the First Citizens Fund, which is an

accounting entry in the books of the province from which grants are made that

are essentially grants funded by the interest earned on the fund on a

year-by-year basis. This is a one-time-only grant.

J. Kwan:

Given that this fund doesn't exist, have moneys been allocated to the fund? And

where does it exist — the money that's been allocated to it?

Hon. G.

Plant: The intention is that the money will come from the sale proceeds of

the investment partnership, and that transaction has not concluded yet, so the

money has not yet been paid.

J. Kwan:

When is it expected, and under what ministry would the legislation —

presumably there would be legislation that deals with the trust fund — be

introduced?

Hon. G.

Plant: That's a matter of future legislation, and we'll probably deal with

it when the legislation comes in. It may be my ministry; it may be the Ministry

of Transportation. Those things are not completely and finely determined as of

this moment.

J. Kwan:

The Minister of Transportation said earlier that only 16 of the 25 bands along

the rail line had signed up for the fund. Then in mid-April that number rose to

23. When was the deadline for the bands to sign up?

Hon. G.

Plant: We had originally contemplated a deadline, but at present we are

thinking about either not having a deadline or extending the deadline in order

to provide more time for the first nations to consider whether or not they want

to participate in the trust fund.

[1530]

J. Kwan:

Originally the government contemplated April 16 as the deadline, and the

aboriginal community had been told that is the deadline. Is the minister now

saying that April 16 is no longer the deadline and that it is indeterminate in

terms of when the deadline is?

Hon. G.

Plant: If you start back at the beginning of the public discussion about

this, I think there was some hope that the transaction would have completed for

now. That may have had something to do with that April 16 deadline.

But the

April 16 deadline does not exist now. We are certainly looking at the option of

either not imposing a deadline or stretching things out to make sure that there

is the right balance struck between the need to get some closure on this at some

point and, at the same time, the corresponding need to be fair and to give first

nations the opportunity to decide whether or not they want to participate. We

haven't, obviously, tabled legislation yet, and there is a possibility that we

could put the date in the legislation when we get to that point.

J. Kwan:

How many bands are participating as of today?

Hon. G.

Plant: I'm advised that as of today, we have formal commitments of

participation from 17 first nations. The work continues of trying to figure out

what the problems are and addressing them to the satisfaction of the other first

nations so that they feel confident that this is an initiative they can

participate in without worrying about any impact on their rights or title. I'm

hopeful that we will be able to find a way to encourage other first nations to

participate or that they will independently decide that they want to

participate.

J. Kwan:

What are the 17 bands that have agreed to participate?

Hon. G.

Plant: I don't have that information in front of me, but I can arrange to

see if we can do the work that would provide the member with a list.

J. Kwan:

If the minister can't provide the answer, I certainly would accept a

statement or a list from the minister after the estimates so that we know which

17 out of the 25 bands have actually signed on to this agreement.

How many

bands have actually backed out of the fund since the details of the deal were

released in April of 2004?

Hon. G.

Plant: My information is that four have withdrawn. Four never signed on. If

you add that to the 17, that gives a total of 25.

The

member's interest in this line of questioning, though, allows me to pursue an

issue that certainly is responsive to the questions and is something that has

been out there in the public debate about this in a way that I think is

unfortunate. There has been some public discussion about whether or not, as a

condition of participating in the trust, we require that first nations publicly

acknowledge that they were participating in the trust.

Really, at

that time what we were looking at was drafting a bill that would identify the

participant first

[ Page 10843 ]

nations specifically, because we wanted to be sure we could put in place a

trust that met the legal requirement of certainty by identifying the potential

trustees and also the potential beneficiaries. This idea that we wanted people

to be willing to acknowledge that they were participants was really only ever

from the perspective of being able to make sure we could actually get the names

of these first nations into the official documents so that we could create

something that was clear and certain. Now we're looking at other ways of doing

that, and I'm not certain what the legislation will look like when it's finally

introduced.

[1535]

There was

never any intention here to try to sign up a bunch of potential cheerleaders for

the investment partnership. I really regret that that kind of accusation or

allegation has been made out there, but I know that this is politics, and

sometimes people find it absolutely impossible to believe that something could

be, in fact, as well intentioned and fairly straightforward as the benefits

trust is.

J. Kwan:

Unfortunately, the Minister of Transportation started this. The Minister of

Transportation gave misinformation about the participation of first nations in

the trust fund, and that escalated. That was further compounded by the leak of

the revitalization agreement — all to do with the government's approach in

dealing with the CN deal. The issue the government is now faced with is caused

by this government and no one else.

Is it any

wonder, given the secrecy and the hiddenness — to borrow a term from the

Premier — that the first nations communities are suspicious of the intent of

the government and feel they've been led down the garden path around this trust

fund? In fact, Chief Ed John said exactly that — that they felt like they'd

been led down the garden path by the government on this trust fund. It was the

Minister of Transportation's comment about the participation of first nations in

this trust fund that caused the issue to begin with.

What

correspondence took place between the ministry and the bands that actually

brought the number of bands to sign on to the trust fund to date — the 17

bands? What correspondence has transpired between the ministry and the bands?

Hon. G.

Plant: There are a number of letters that have been sent to first nations

going back to, I think, December 8 or 9. I actually referred to some of those

letters yesterday during the course of debate on a motion that was before the

House tabled by the Leader of the Opposition. In addition to the letter of

December 8, there were letters…. I've got one in front of me here, February

17. Actually, it may have been December 9, not December 8. I think there was

another letter sent in mid-January. There was a letter sent in mid-February,

February 17. I know there was a letter sent to at least one of the chiefs on

March 26.

There was a

meeting in Prince George on February 12, 2004, regarding the B.C. Rail first

nations benefits trust. Most of the 25 first nations — not all, but most —

were able to attend that meeting, and there were some questions raised. The

letter of February 17 contained our attempt to answer those questions, and in

the context of the subject that continues to be of interest to the member, I

think it's important to read a little bit of that.

[1540]

One of the

questions that was asked was: "Are there any conditions regarding rights

and title attached to first nations participation in the trust?" The answer

was as follows: "The B.C. Rail partnership agreement with CN Rail does not

transfer any title to lands, and the creation of the $15 million trust does not

involve aboriginal rights and title and related consultation and accommodation.

Participation in the $15 million trust will not have any conditions related to

assertions of rights and title."

That last

sentence, I suggest, is about as clear as you can make it. I think we have been

pretty consistently clear about those issues, even though I understand those

questions continue to be raised.

J. Kwan:

The correspondence with respect to the participation of first nations in the

trust does not indicate their support for the B.C. Rail deal. In terms of that

piece of correspondence relating to that statement, when was that correspondence

issued from the ministry?

Hon. G.

Plant: I've got a letter of March 26, 2004. There may be other letters, but

it's a letter of March 26 from the deputy minister of the treaty negotiations

office addressed to Chief Norman Leech of the T'it'q'et band in Lillooet. It

refers to first nations having expressed a number of concerns, and they include

the sorts of concerns that have been part of the member's questioning. We

responded to them in this letter.

They

include the contention that some first nations have made that participating in

the trust would represent support by first nations of the B.C. Rail partnership

with CN Rail, that participating in the trust would represent agreement by first

nations to give up or set aside claims they may be pursuing or have intended to

pursue with B.C. Rail, that participating in the trust would prevent first

nations from pursuing railway-related taxation initiatives, and that

participating in the trust would indicate first nations were endorsing the list

of first nations that would be included as beneficiaries in the trust.

What the

deputy minister says goes on for some length, but it begins with this:

want to be clear with you that this is not the case. My staff have endeavoured

to be very open with the first nations involved with this initiative. I

believe I have been sensitive to your concerns, even going to the point of

allowing staff to share draft legislation with your committee and legal

counsel. The Honourable…" — it then refers to my letter dated

February 17 — "was clear about conditions associated with participating

in the trust. However, I am certainly willing to address your concerns

again."

He goes on

to address the concerns again and to do what he can to put those concerns

completely to rest, because they are without substance or foundation.

[ Page 10844 ]

J. Kwan:

In spite of what the minister deems to be reassurances to the aboriginal

community, since that time they still raise concerns about the trust fund, and

of course, they raise concerns about the sale of B.C. Rail.

The Title

and Rights Alliance issued a press release on April 19, 2004, in which they say:

"B.C. first nations oppose the sale of B.C. Rail. First nations throughout

B.C. object to the proposed sale of B.C. Rail. Comments by the Transportation

minister" — and that is the current Transportation minister — "in

today's Prince George Citizen newspaper are completely false." The

Transportation minister states and is quoted in this press release:

"Frankly, I believe all of them — first nations — view this as

positive."

The press

release goes on to say, from Justa Monk, a steering committee member of the

Title and Rights Alliance:

"They

are using first nations to attempt to deceive the public and CN Rail. The $15

million fund for the 25 first nations truly is money to keep them quiet. The

vast majority of first nations in B.C. are opposed to the sale of B.C. Rail

since the land question remains unresolved. The transfer of B.C. Rail to CN

Rail without consultation and accommodation is in effect breaking the law.

First nations have demanded to see the details of the sale agreement, but the

B.C. Liberals have just said: 'Trust us.' As of today, I don't think anyone

should trust this government. The Title and Rights Alliance."

[1545]

Then you

have the Mount Currie band council about the trust fund. Let me just put on

record what they wrote to the minister on April 29, 2004.

"On

behalf of the Mount Currie band council, I'm writing you to indicate our grave

concern with the sale of B.C. Rail and the associated B.C. Rail first nations

benefits trust. In particular, we have a concern that your government has

misrepresented the facts of the B.C. Rail sale agreement, and now we question

the honesty and integrity of the information provided to us with regard to the

trust."

The letter

goes on to highlight the 990-year deal, the discontinued land issue, the sale,

the potential sale of Crown land for a dollar for it to become private land.

"These

aspects of the B.C. Rail deal have never been disclosed to us by the

government at any meetings or through any correspondence related to the trust.

Staff at the treaty negotiations office will not affirm or deny the presence

of these clauses in a sale agreement."

Based on

the information that the aboriginal communities have received today, is it any

wonder that they don't trust the government? Let's see if we can help settle

some of these issues. Is the minister aware of the revitalization agreement,

particularly with respect to the clause on discontinued land?

Hon. G.

Plant: I answered the questions about the clause on discontinued land very

clearly earlier and explained my understanding of its legal significance. Just

to remind the member, among the things I said was that if in the future there

was any action undertaken in relation to the powers and rights that arise under

that clause, then at that time the parties to that action will have to determine

whether there are any additional obligations owed at law, including obligations

that might arise because of constitutional requirements to consult and

accommodate in certain circumstances involving the infringement of aboriginal

rights and title.

I want to

be clear about a couple of things that I probably should have put on the record

before. My staff, the treaty negotiations staff, did have several meetings with

the potential participants in the B.C. Rail benefits trust. Those meetings were

never for the purpose of explaining or talking about the B.C. Rail investment

partnership. They were only for the purpose of talking about the trust. As I

have already made clear, when you examine the record in Hansard of what

it is the Minister of Transportation said about discussions that included first

nations in the spring of 2003, those were discussions undertaken by officials of

B.C. Rail. They were not discussions undertaken by officials from either the

treaty negotiations office or the Ministry of Attorney General.

I get that

there are people who apparently still have questions and concerns about whether

or not they want to participate in this trust. Participation in this trust is

not mandatory. It is voluntary. In practical terms, I think it's probably worth

pointing out that every time someone doesn't choose to participate, there will

be more money available for those who do choose to participate. It's not, I

suppose, ultimately a question that is going to concern me all that much,

because the trust, I hope, will come into existence and the $15 million will be

provided to those communities who do want it. They will be able to use the money

for any project that fits within the scope of the three general principles that

I've referred to on several occasions.

I think the

B.C. Rail benefits trust is another example of why the B.C. Rail investment

partnership is good news for British Columbians and is particularly good news

for aboriginal British Columbians. It's a $5 billion opportunity to grow the

economy for the benefit of all. I know there are people who would rather not see

that happen, and I wish they could join with us in the adventure and the

excitement of creating a new economy for British Columbia in the twenty-first

century, but they may not want to do that.

In the

meantime, however, Mr. Chair, I move that the committee rise, report progress

and ask leave to sit again.

Motion

approved.

The

committee rose at 3:50 p.m.

The House

resumed; Mr. Speaker in the chair.

Committee

of Supply B, having reported progress, was granted leave to sit again.

Hon. G.

Collins: I call Committee of the Whole for consideration of Bill 35.

[ Page 10845 ]

Committee of the Whole House

PARTNERSHIP AMENDMENT ACT, 2004

The House

in Committee of the Whole (Section

B) on Bill 35; J. Weisbeck in the chair.

The

committee met at 3:53 p.m.

Section 1

approved.

On

section

Sultan: I have some general questions concerning Bill 35, the Partnership

Amendment Act, 2004, because it is a very intriguing new structure that is being

offered to the business community and the professional community in British

Columbia. But I'm sure there are many questions arising from this

section and

perhaps others.

When would

this new vehicle be available to lawyers and accountants?

[1555]

Hon. G.

Collins: The legislation will come into force by regulation. It is

government's intention to do that fairly quickly. As to whether or not certain

professions can use the legislation, we provide that by amending their governing

act. They would be required to put in place the rules that would govern that.

These are generally self-governing bodies, and they would set that up on their

own. As soon as they're able to and it works with their members, they're able to

take advantage of the legislation.

Sultan: I take it, then, that the minister is advising us…. I suppose

there is something called the Chartered Accountants Act perhaps or

an act

governing the conduct of the legal profession. Each of those acts, as I would

understand it from the response, would now have to be amended.

Hon. G.

Collins: Yes. It is not a large bill, so I don't have a problem with

addressing it all at once. I believe it is

section 8 that actually puts in place

a series of amendments. In this case, the member mentioned the Chartered

Accountants Act. There is provision in this legislation before us, in

consequential amendments, that we put in place a structure. Then we go and amend

the governing legislation for the various professional bodies, which allows them

to take advantage of this. Then they go and put in place whatever procedures or

processes or rules they need within their process to make sure that it works for

them.

Sultan: I recall that the minister informed the House that while the initial

targets, if I can use that word, for this legislation were chartered accountants

and lawyers, perhaps there would be further amendments to the act bringing

general accountants and management accountants within the purview of this new

structure.

Hon. G.

Collins: The intent of government has been to provide a vehicle and then, I

guess, determine — either now or an ongoing basis — who gets to be in that

vehicle.

This

legislation creates the structure for limited liability partnerships. It names

three different professions, I believe, in the act — the lawyers, the notaries

and the chartered accountants. Those were the ones we heard from. Government's

intention was and continues to be that it will canvass the other various

professional bodies with governing legislation that may choose to take advantage

of this type of a structure, consult with them and advance those professions in

further amendments at a later date.

Subsequent

to this legislation being introduced in the House, we heard from the CGAs as

well as the CMAs, who were also interested — there is always a healthy

competition amongst the various branches of the accounting family — and wish

to be part of it as well. We have drafted amendments that would do that for the

CGAs and the CMAs. I will be proposing those amendments when we come to the

appropriate places in the legislation today.

Sultan: Do I take it, then, from the minister's response that theoretically,

at least, virtually any self-governing professional body could conceivably come

under the purview of this act?

Hon. G.

Collins: This bill does two things. It creates the structure, and then it

names three — and if we pass the amendments, it will name five —

self-governing professions that will use this vehicle. In the future, though,

any other self-governing body that has legislation — like the CAs or the

notaries or the lawyers, etc. — certainly could come and ask government. We

will be canvassing them, as well, to determine whether or not this is a vehicle

that will be useful for them in their profession. If we can come to terms — it

should not be difficult; it could be done relatively quickly — then government

and the Legislature could choose to amend the governing legislation of those

various professions to allow them to set up the rules that would allow them to

take advantage of this vehicle.

Yes, I

can't think of any that wouldn't, but we'll just pursue it one by one.

[1600]

Sultan: I presume it's quite possible that the Association of Professional

Engineers of British Columbia could conceivably come forward and request

consideration under this act.

Hon. G.

Collins: Yes, the engineers could if they agreed amongst themselves as to

how they might do that and whether or not they were comfortable doing it. Other

professions could as well. I believe architects and similar professions could

choose to pursue this

[ Page 10846 ]

vehicle as well, and government would certainly be willing to discuss that

with them.

That

legislation is generally handled by the Minister of Advanced Education as part

of her purview of legislation that she's responsible for, so those consultations

should probably take place between those professions — the representatives,

obviously, of those professions — and the Minister of Advanced Education where

that's appropriate.

Sultan: When the minister introduced this legislation, I seemed to hear some

words which almost imply that this new organizational form might be made

available to organizations which went beyond the traditional professional

organizations. Could the minister clarify that situation?

Hon. G.

Collins: I'm happy to do that. In fact, around the world there are a number

of jurisdictions — many, in fact — that have this limited liability

partnership corporate structure in place. It's not just for professions, but

it's also another means of structuring a business. We felt it was appropriate to

pursue a similar agenda here to put us in a position that made British Columbia

competitive internationally. We don't want to just be number one in Canada. We

would like to be a place that's attractive for investments from around the world

and, in so doing, create opportunities, jobs, a tax base to pay for the various

services people look for.

So yes,

this legislation, as I mentioned, provides a vehicle. It's a fairly large

vehicle. Lots of people could, if it worked for them, choose to take advantage

of this vehicle and make a choice as opposed to incorporation or a standard

partnership. That's really the choice of the people in the business and how they

choose to structure themselves, but this provides one more vehicle for them to

do that. It's something that is done in numerous places around the world and

puts British Columbia back on track with those jurisdictions.

Sultan: I suppose that since those other possible groupings of interests

that might want to adopt a limited liability partnership form may not typically

be organized in a professional body governed by

an act, that particular step

would not be part of the process of gaining approval. Is that correct? What are

the mechanics and the nuts and bolts? To whom would one apply?

Hon. G.

Collins: It's actually fairly straightforward. Yes, in response to the

member's comments, any business venture could choose to organize in this

structure. If they do, the mechanics of it are that they would register with the

registries as a limited liability partnership. There are some things they are

required to do. They are required to make their customers and their creditors

aware of that. They are also required to put it in the name of their company, so

you'll see — I don't know — Joe's Wax LLP, I suppose. I'm trying to think of

a company that might do it. The LLP would be attached to the name of the

company. That way, people doing business with them would be aware of the

structure. Creditors would be aware of the structure. Then they can operate as a

limited liability partnership.

[1605]

Sultan: Back to the situation where it is a professional organization which

chooses the LLP form. Being a member of a professional body myself — namely,

the professional engineers…. I suppose the theory of not allowing limited

liability to lawyers, accountants — or engineers, for that matter — was, in

the case of engineers, that if they design a bridge that falls down, the persons

injured should have full recourse to not only their office desk and computer but

maybe their home, car and all of the assets that they were holding for future

generations. By limiting this liability, we are removing a form of

accountability from lawyers, accountants and possibly engineers in the future,

and this isn't necessarily in the best consumer interest.

Since

someone may raise such a rather flamboyant accusation, if they do, how would the

minister respond?

Hon. G.

Collins: I don't know if that member has ever designed any bridges that he's

worried about. If he were to be, I can't give him any assurance with regard to

this legislation. This legislation, while it does put a liability shield in

place…. That liability shield falls away in the event of negligence. Provided

somebody is just operating in a normal business method or business practice, the

shield is similar to that which exists in an incorporated company. Personal

assets of the individual are shielded from creditors, etc.

In the

event that the individual is negligent for some reason — in the case of an

engineer, the example that member used, or in other ways, in other professions

— then that shield falls away, and the person would be liable for the actions

that they had taken or the negligence they had exhibited.

Sultan: If I may be allowed the liberty to read a communication I received

this afternoon from an interested lawyer with whom I have had a long

association…. He commented as follows on this particular issue, referring

again to the possibility of engineers falling within the purview of this act:

think professional engineers are very similar to lawyers in that their

professional association requires them to carry liability insurance, and their

code of conduct says that even if they are incorporated, they cannot use the

existence of the company to avoid personal liability for negligence" —

which is, I believe, the point the minister just made. "I gather a number

of these associations have been pushing for an 'ultimate limitation period' so

that after, say, ten years both the professional and their insurance company

know that there is no further exposure no matter what happened in the

past."

Are you

able to provide any information about how the act intends to deal with issues

such as these?

Hon. G.

Collins: I believe the issue the writer of that letter is raising is that of

statutes of limitations for liability. There is a civil liability review that's

under-

[ Page 10847 ]

way by the Attorney General and his ministry, looking into those types of

liability issues. That is something that's under the purview of his office. This

does not limit the time lines for liability. It merely limits the nature of the

liability and describes that.

Sultan: Just to conclude my questions on this act, I think it would be in

order for me to compliment the minister and his staff for bringing forth a form

of organization that many in the business community have asked for to make

British Columbia even more competitive with jurisdictions elsewhere. I think the

initial response I've already received in the short period of time since this

bill has been introduced is extremely favourable and is further evidence of the

drastic improvement the business climate is incurring under this minister.

On their

behalf, I thank him very much. That concludes my questions.

Hon. G.

Collins: I do want to say just a word on that. There has been a great deal

of work done in the ministry over the last three years in particular, but I know

that work was started, in many cases, almost decades prior. It really just took

the energy to bring it to fruition and move it through the process.

[1610]

I want to

thank the member opposite for his assistance on a number of issues over the last

three years. I also want to, on behalf of the people of British Columbia, thank

the gentleman who is sitting to my left, Leon de Wet, who has led that part of

the ministry for a number of years, since before we came to government, and has

really done an incredible job over the years on some extremely complicated

legislation, some extremely complicated issues — whether it be the Business

Corporations Act, the Partnership Act, the Financial Institutions Act or the

Real Estate Act. I could list all the legislation that the ministry has revised

and updated in the last number of years to really bring us up to speed with the

rest of the world — legislation that had suffered from either neglect or

wanton disregard over the years in that some of it had not been amended for 50

years, some of it for 20 years or 30 years. So we've been able to achieve a

great deal. I also want to say that he was involved heavily in the new

securities legislation, which the government hopes to move forward on very

shortly.

All of

those were big rewrites, and it's allowed British Columbia to take a leadership

position, I think, in Canada — if not in North America, if not around the

world — with regard to the type of legislation that guides the financial

institutions and the financial and business arrangements of people in this

province.

I wanted to

thank Leon, because he is abandoning British Columbia just when we're getting it

going. He and his wife and family will be moving to Australia shortly to take up

residence and become entrepreneurs. I just want to thank him for his years of

service and wish him the best of luck in his new endeavours. I think that people

have been well served by his efforts.

Sections 2

to 6 inclusive approved.

On

section

B. Kerr:

This is a red-letter day for me. Yesterday I spoke in the House about the five

things I wanted to get done before the end of my first term. I was speaking

about a number of the things in my riding. I wasn't speaking about issues such

as this, which was also on my list — to bring out the limited liability

partnerships and avoid what we could call the liability chill to professionals.

The

liability chill had quite an effect on the type of work that you would take on

as an engagement and made it difficult sometimes for people to take on riskier

engagements when people needed to get financing. It also increased the fees to

clients overall, let's say, in the accounting profession. So much work was done

just to protect yourself from liability because you knew that a partner — in

those days a general partner — in an accounting firm or a professional firm

would be liable for anybody's actions across the entire country. So I thank the

minister for bringing this out. This is great news. Maybe I should explain that

I am a chartered accountant, so I've had to live within this type of liability

for some time.

I've got a

couple of technical questions that I want to ask in this report. Pardon my

ignorance, because I'm not a lawyer. Maybe these things are just legal things

that could be answered very quickly.

We have a

situation where we're calling, in the

definitions under

section 7 of the

amendment and

section 94 of the old act, if I can use it that way…. We've got:

"'Professional partnership' means a partnership through which one or more

persons carry on the practice of a profession…." I don't know. A lot of

people carry on through a corporation, and I wonder if "persons"

would, also, in corporations that are partners.

Hon. G.

Collins: Yes, it does.

B. Kerr:

We have two types of partnerships in here. We have what is called limited

partnership, and we have a limited liability partnership. I understand that in a

limited partnership, people who sign on aren't allowed to have any hands-on

operations with the partnership they're involved in. It's usually controlled by

what's called a general partner, and that general partner takes on all the

liability. The limited partners are hands-off, and it's primarily to get income

through investment income, quite often in real estate projects of that type or

nature.

Now we're

allowing the limited partnership to move into what's called a limited liability

partnership. I wonder what kind of additional onus that would put on the limited

partners.

[1615]

Hon. G.

Collins: In the scenario the member spoke of, the limited partner under the

current process has limited liability, but they also have limited control and

[ Page 10848 ]

limited say in how the business would be run. If they chose to convert

themselves to a limited liability partnership, then they would have the shield

that they had previously but would also have the ability to have a greater say

in the way the venture was managed. All they have to do is register through the

normal process like everyone else, with the registries, and behave in the manner

required, as I mentioned earlier, and they would be able to operate in that

fashion. So there's an advantage there for those partners who wish to be

involved but do not want to carry all the liability of the larger or the more

senior partner, I guess, in this case — but still have some say in the

managing of the company.

B. Kerr:

I would imagine, then, the limited partners now in the larger projects can go on

to the audit committees or boards or management advisory committees — that

type of thing.

Hon. G.

Collins: That's correct.

B. Kerr:

I think that adds a lot of flexibility, and I think that's good. Under the

registration now, to become a limited liability partnership, you have to file a

registration. There are two instances when you can. One of the instances is

where a person has received approval of all the partners, and another one is if

the partnership agreement authorizes the filing of a registration statement. I'm

just wondering whether, for a grandfathering situation, we should have it where

everybody must agree first, so that we can't just slip something in there within

a partnership agreement that might be 40 or 50 pages long — on a limited

partnership agreement — which would authorize a person to do this, and

suddenly they become a limited liability partnership without them knowing it.

Hon. G.

Collins: First of all, government doesn't, in great detail and great

minutiae, manage the internal workings of a partnership. In the scenario the

member raised, let me give two examples. Let's say we had a small partnership of

three people. It's pretty easy to tell whether they're all in or not, whether

you've got consensus. If you've got a much larger partnership — let's say a

law firm that could have 300, 1,000 or 1,500 lawyers; they seem to get bigger

all the time — it would be very difficult to have all those file and to gauge

whether or not you had that. If you had a partnership agreement that said they

were going to become a limited liability partnership, that would suffice as

assessing whether or not the consensus existed.

However,

the issue the member raises of an example where there might be some pre-existing

mechanism in a partnership agreement that would allow this to happen without one

of the partners knowing…. You know, we can't regulate every little tiny bit of

how the partners structure themselves. I would say that might be a partnership

agreement that the partners might want to be a little nervous about, if it gave

them that much flexibility. I don't know about the particulars. Either way, once

that partnership — large or small — registered as a limited liability

partner, it would start appearing on the letterhead. It would appear on the

business cards. It would appear on the name of the company. It would have to be

out there. One of the partners who all of a sudden shows up for work one day and

notices there are a couple of extra letters at the end of the partnership might

want to take note of that.

There are

some practical things that happen here. Really, it's based on a system of

disclosure, so everybody knows. We really can't get into each partnership

agreement and say: "You can't do this and you can't do that, based on your

partnership agreement." That's really something that members of

partnerships need to be responsible for themselves.

[1620]

B. Kerr:

I wasn't referring to that type of partnership, which is a partnership where

everybody is sort of part and parcel of the management. I was thinking more of

limited partnerships, like limited film partnerships, where they're selling

limited partnerships through all of Canada, particularly in British Columbia.

When you sign on to those things, they're usually done through a securities

commission and through a brokerage house, so you don't really know all the terms

and conditions, because they're huge, long documents.

Hon. G.

Collins: The scenario, I think, is worthwhile asking about, but my

perception of the example the member gave would be that if you went from a

limited partner, which has that protection, to a limited liability partner, you

would still have the protection. You would just have the opportunity to have a

greater say. In fact, that would be an improvement, I would say, on the position

of that limited partner, not a deterioration in their position — unless the

member has an example where it might be. I'd be interested to hear it, if he

does.

B. Kerr:

I guess my concern is that although you have the protection of the corporate

shield, you don't really, if you're a limited partner…. If you're a limited

partner, the most you can lose is your investment in the limited partnership.

But as a limited liability partner, you suddenly take on the obligation for any,

let's say, environmental damage. You could be jointly and severally liable for

any damage that happens that would pierce the corporate veil, if you want to

say.

Hon. G.

Collins: The only way that shield would be perforated would be in the event

that you went from a limited partner to a limited liability partner. The example

the member used was…. Let's say an environmental degradation had happened by

the lead partner or the senior partner in this. You are no more liable in a

limited liability partnership than you would be in a limited partnership unless

you yourself were negligent or knew that this was happening and didn't respond

to it, and in that form were, I guess, negligent. It would have to be something

that you as a partner

[ Page 10849 ]

did. If it was something that happened from the other partner and you were

not aware, weren't part of it, then the same protection that was there prior

would exist in this case as well.

B. Kerr:

I hope that's the case. I'd like to move down into that now when we're talking

about the liability. Under

section 2, it says that it does not relieve a partner

in a limited liability partnership from personal liability for the partner's own

negligence — which I certainly agree with — or for the negligence or the

wrongful act or omission of another partner or an employee of the partnership of

the partner seeking relief.

My concern

is: why would a partner, if he's not liable, have to seek relief? What would

trigger something for him to have to seek relief? Does the onus go on the

partner? Then he has to try to get off the hook? Shouldn't he be off the hook

automatically and something trigger him to put him on the hook?

Hon. G.

Collins: This

section is reading as though something's happened and the

partnership is being sued. Normally, the person suing would just name all the

partners. What this says is that you have that protection, provided you didn't

know, and if you did know, that you did something about it. Maybe I said that

backwards. But if you were culpable in any way, according to…. You've got to

read the whole subsection. It's (2)(a)(b)(

i) and (ii). If you knew of the act or

omission, and you did not take the actions that a reasonable person would take

to prevent it, then you're out of luck. You don't get relief. You are, in fact,

going to be part of the action.

However, if

those don't apply, then you have a case and say that I had no knowledge of this,

and therefore I can't be personally liable. The other individual would be

liable. That's as it would exist previously.

B. Kerr:

I'm getting into "partners subject to same obligations as the corporate

directors." Again, I guess we're also now looking at partners as if they're

shareholders. I'm not sure where this particular question fits in. There is an

annual report that a limited liability partnership would have to prepare.

[1625]

I'm just

wondering now whether the difference is going to be a reporting limited

liability partnership and a non-reporting limited liability partnership and

whether obligations will be different depending on the size.

Hon. G.

Collins: This annual report is not like a financial report, an annual report

that you would issue. These are partnerships. The report that's being talked

about here is just their report to the registries, which names their partners,

locations, etc. — just the data that they're required to keep on file at the

corporate registry.

B. Kerr:

Essentially, we're still talking about that the onus is on the partner. When he

enters into an agreement, he still has to ensure everything that's in the

partnership agreement and be aware of it. That's fine. I think that's good. We

were just getting into the thing.

There's a

sort of reciprocal thing here between…. You call a foreign partnership a

partnership that's not registered in British Columbia, and that seems odd to me.

It might be outside British Columbia, but it wouldn't necessarily be foreign if

it was in Alberta. I'm just wondering why that terminology was used.

Hon. G.

Collins: It's probably small-f foreign, in that it's foreign to the registry

of this district — British Columbia. It's not sort of the national or

international. It's more outside of the jurisdiction of this registry.

B. Kerr:

I guess Alberta would be small f. When we get as far back as Ontario, then maybe

we're getting to big-f foreign. I'm thinking now of the larger professional

firms, the law firms and accounting firms.

Going into

section 115, they "may apply to register the foreign partnership as an

extraprovincial limited liability partnership if the foreign partnership has the

status of, or a status equivalent to that of, a limited liability

partnership…." So what happens with the firms that are registered

extraprovincially? I don't know whether there's such a thing as limited

liability partnerships across the rest of Canada. Would a firm like PWC want to

do something like this?

Hon. G.

Collins: Certainly, if a company — for example, a major accounting firm or

law firm — wished, they could choose British Columbia to be their base and

register here as a partnership in British Columbia. If they are a limited

liability partnership in other jurisdictions outside of British Columbia, that's

fine. They can be registered there, but they're also required to make their

registration here in British Columbia so that we're aware of them as well.

B. Kerr:

But does this type of legislation exist in any other parts of Canada, or are we

leading the way?

Hon. G.

Collins: Yes, most jurisdictions have limited liability partnership in

place. Not all of them include the broader ability for a variety of businesses

to use this vehicle. They may be limited to certain professions. So yes, this

type of legislation is in place. Ours is perhaps a little broader than what

you'll find in other parts of Canada.

B. Kerr:

Those are all the questions I have for the minister. Thank you very much. I

think this is great, and I'm very pleased that it has happened. I'm glad that it

happened in my first term also. I think that's terrific, and I think people are

going to…. Maybe we'll get some accounting fees reduced, because the liability

chill won't be so high.

Hon. G.

Collins: I'm glad I could bring a successful end to the member's first term.

I'm sure he'll have many.

[ Page 10850 ]

I believe

we're on

section 7 now, are we?

Section 7

approved.

The

Chair: Minister of Finance on an addition to the section.

Hon. G.

Collins: As I stated earlier, we intend to amend the bill before us to

include certified general accountants as well as certified management

accountants. I would add a

section 7.1, which is in the hands of the Table.

Interjection.

Hon. G.

Collins: Move both together?

I move both

sections 7.1 and 7.2, which are in the hands of the Table.

[SECTION 7.1, by adding the following section:

Accountants (Certified General) Act

7.1

Section 11 of the Accountants (Certified General) Act,

R.S.B.C. 1996, c. 2, is amended

(

a) by renumbering subsection (1) as subsection (1.1) and by

adding the following:

(1) In this

section and in sections 11.1 and 11.2,

"limited liability partnership" means a partnership registered as

a limited liability partnership under

Part 6 of the Partnership Act., and

(

b) in subsection (3), by adding the following paragraphs:

(t.1) granting authorization to members to provide

accounting services to the public through limited liability partnerships;

(t.2) prerequisites, conditions, limitations and

requirements for members to provide accounting services to the public

through limited liability partnerships;.

SECTION 7.2, by adding the following section:7.2 The

following sections are added:

Liability not affected by practice through limited liability

partnerships

11.1 The civil liability for professional negligence of a

member is not affected by the fact that the member is providing accounting

services through a limited liability partnership.

Application of Act not affected by practice through limited

liability partnerships

11.2 A member's relationship to a limited liability

partnership as a partner, employee or contractor of the limited liability

partnership does not affect, modify or diminish the application to the member

of this Act or the bylaws.]

Sections

7.1 and 7.2 approved.

Sections 8

to 11 inclusive approved.

[1630]

The

Chair: Minister of Finance on a couple more additions.

Hon. G.

Collins: I move an amendment in the hands of the Table to add sections 11.1,

11.2 and 11.3.

[SECTION 11.1, by adding the following section:

Accountants (Management) Act

11.1

Section 1 of the Accountants (Management) Act, R.S.B.C.

1996 c. 4, is amended by adding the following definition:

"limited liability partnership" means a

partnership registered as a limited liability partnership under

Part 6 of the

Partnership Act;.

SECTION 11.2, by adding the following section:

11.2

Section 15 (2) is amended by adding the following

paragraphs:

(r.1) granting authorization to members to provide

accounting services to the public through limited liability partnerships;

(r.2) prerequisites, conditions, limitations and

requirements for members to provide accounting services to the public through

limited liability partnerships;.

SECTION 11.3, by adding the following section:11.3 The

following sections are added:

Liability not affected by practice through limited liability

partnerships

15.1 The civil liability for professional negligence of a

member is not affected by the fact that the member is providing accounting

services through a limited liability partnership.

Application of Act not affected by practice through

limited liability partnerships

15.2 A member's relationship to a limited liability

partnership as a partner, employee or contractor of the limited liability

partnership does not affect, modify or diminish the application to the member

of this Act or the bylaws.]

Sections

11.1 to 11.3 inclusive approved.

Sections 12

to 19 inclusive approved.

Title

approved.

Hon. G.

Collins: I thank the members for their questions, and I thank the officials

for their work on this legislation.

I move the

committee rise and report the bill complete with amendments.

Motion

approved.

The

committee rose at 4:31 p.m.

The House

resumed; Mr. Speaker in the chair.

Reporting of Bills

Bill

35, Partnership Amendment Act, 2004, reported complete with amendments.

Third Reading of Bills

Mr.

Speaker: When shall the bill be considered as read?

Hon. G.

Collins: By leave, now.

Leave

granted.

Bill 35,

Partnership Amendment Act, 2004, read a third time and passed.

[ Page 10851 ]

Hon. G.

Collins: I call Committee of the Whole House for consideration of Bill 33.

Committee of the Whole House

FORESTS STATUTES

AMENDMENT ACT, 2004

The House

in Committee of the Whole (Section

B) on Bill 33; L. Stephens in the chair.

The

committee met at 4:34 p.m.

The

Chair: I recognize the Minister of State for Childhood Development.

Hon. L.

Reid: Might I beg leave to make an introduction?

Leave

granted.

Introductions by Members

Hon. L.

Reid: In the gallery today we have Dorothy Hamilton. Many of you will know

that she's been near and dear to me for many, many years. She's joined by her

granddaughter, Hannah Hatlen, who is soon to be three years of age on June 5,

and her mother, who happens to be my constituency assistant, Kathie Hatlen. I'd

ask the House to please make them welcome.

[1635]

Debate Continued

Sections 1

to 20 inclusive approved.

section

Visser:

Section 21 gets us into something that I think has captured the

imagination of certainly a number of my communities on the north end of

Vancouver Island and a couple that I can think of specifically.

My first

question on this

section is: what do you mean by a probationary community forest

agreement as opposed to a real, final community forest agreement?

Hon. M.

de Jong: I wonder if I might take a moment just to review the evolution that

has occurred with respect to community tenures. It's partly a question around

the development of substantive public policy. But it's also been a bit of a

personal journey, because I must confess that my attitude toward the notion of

these community tenures has changed over time. Forgive me if I go on a bit at

length in that respect.

It was

actually some time ago when the notion developed that a tenure would be created

which vested not in an individual and not in a corporation but in a community.

There are a small number of those types of tenures in existence. The Forest Act

was amended at the time to allow for and contemplate those kinds of community

tenures, and a particular regulatory regime was developed.

A portion

of that related to the mechanism by which the tenure became available and was

awarded. As the member correctly points out, in the regulatory regime that

presently exists in the Forest Act, it speaks to community forest pilot

agreements. I suppose it is a reflection of the experimental nature of the

tenure as it was first developed. It also reflects the notion that as the tenure

was developed and awarded, it was done on the basis of government saying:

"Well, we've received your business plan, we've received your application,

and now we want to study your success over a period of time, initially a

five-year period of time. Are you achieving the objectives as set out in your

business plan?"

This is not

a criticism of anyone in particular. It has led to a feeling of uncertainty on

the part of those agencies that hold these community tenures. There is a notion

of temporariness about the tenure. Part of that, I should say, is reflected in

the fact that there is a review process, and whether or not that community

tenure will continue forward beyond the period contemplated by the pilot

agreement…. And it creates additional workload requirements on the part of the

Crown.

What we are

trying to do here is, first and foremost, convey that the community forest

tenure is going to become a more permanent part of the licensing landscape in

British Columbia. There is legal language that may or may not, to the average

layperson, convey that, but that is something I want to convey as part of this

debate.

[1640]

In fact,

I'll go further than that, Mr. Chair. What we have said and what we have built

into the overall forestry revitalization plan that this legislation refers to in

large measure is an overall objective to double the size of what are called

small tenures — community tenures, woodlots. That is also very much part and

parcel of the initiative that exists here as part of Bill 33.

In order to

clarify the methodology and the rules around which this expanded program —

although I hesitate to call it a program, because that suggests a temporary

nature…. Programs tend to come and go. Community forests, I say, are going to

become a permanent feature of the landscape in British Columbia. What we are

trying to do is streamline the mechanism by which a community forest is awarded,

reviewed and made a permanent feature of a community's life. That's why that

terminology is changed, and as we get into the discussion that I hope and think

we are going to have, I'll talk some more about the process by which we

contemplate this expanded volume and the expanded number of community forests

being created, the mechanism by which that will happen and how this legislation

helps to clarify the mechanism by which that will happen.

B. Kerr:

This is the one section, I guess, that I'm concerned about, because I have this

situation occur-

[ Page 10852 ]

ring in the western reaches of my riding right now. Some people up there are

very concerned about it because they figured the community forest is the one

thing that's going to really help them to develop that area and bring back some

jobs to the area so the school children that are there, the few school children

left, won't have to be bused two hours every day. For this particular community,

it's pretty important.

There are

also some other communities that are looking for a community forest up in the

eastern part of my riding around Shawnigan Lake. I'm not entirely sure how they

can get into the community forest. I'm noticing that in the

section here, it

says that on request or on his or her own initiative, the minister may entertain

— or through advertising for a community forest…. My first question is: what

do the words "on request" mean? Who is the request from?

Hon. M.

de Jong: Well, happily, the member has zeroed in on one of the key issues

that is tied up in the whole question of the expansion of the community forest

tenure program. It relates to the very mechanism by which it happens. Some of

this is in this section, and some of it's in other sections, but let's deal with

that issue in its entirety if we can.

There are

two mechanisms by which this can happen. Both, I will say to the member, involve

the community coming together and finding an agency by which it may hold this

licence and an agency that enjoys broad community-level support.

In the one

instance, the minister — who I believe, by virtue of the act, is the statutory

authority or person authorized by the minister or a designate — will invite

applications from a community and say, by way of advertisement, that the Crown

and the right of the province of British Columbia in the Forest Service are

interested in establishing a community forest tenure. In such-and-such area we

are inviting submissions from interested groups or parties to hold that

community licence — not altogether dissimilar from some of the processes that

have been followed in the past with the slightly more than half-dozen community

forest tenures that exist today.

[1645]

The bill,

however, contemplates a second process, and the member has zeroed in on it as

well. It is a more direct process. It is a process whereby the minister and/or

his or her designate would say to a particular group: "We are prepared to

directly award a community tenure to you absent a broader competition for that

tenure." It is, in effect, a direct-award mechanism that would allow the

minister and the government to direct-award and expedite that award process.

Now, I will

say to this member, in the hopes and confidence that he will pass this along to

those in his constituency who have, as he correctly points out, a tremendous

interest in this. As a single minister, I would exercise the authority that this

section speaks to insofar as direct award with extreme caution. There would need

to be demonstrable evidence that the group or the proposal coming forward enjoys

broad community support.

The best

way I can say that is…. Someone asked me. We were at a meeting a couple of

weeks ago with the association for community tenures in Revelstoke. Revelstoke

has had a community forest that arose in a slightly different way for 11 years

now. The question was: well, how do you know when there is broad community-bas