1993 Legislative Session: 2nd Session, 35th 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 25, 1993

Afternoon Sitting

Volume 10, Number 8

[ Page 6473 ]

The House met at 2:04 p.m.

Prayers.

E. Barnes: I have the pleasure of introducing Mr. Mbulelo Rakwena from South Africa, head of the secretariat for foreign affairs of the Azanian People's Organization, Azapo; Mr. Menziwe Mbeo, head of the Victoria-based Mophato Bursary Fund Society; and Mr. Jonathan Baker...pardon me, Mr. Jonathan Johnson. That's an interesting slip; Jonathan Baker, in case you're wondering, is a former alderman. Mr. Rakwena is here in Victoria on a four-day visit to update Canadians on current affairs in South Africa with respect to political transition, and he will be meeting with some members of my caucus later today. I would ask that all members make them welcome.

L. Hanson: In the gallery today is Miss Pauline Shaw and a very good friend of mine, Dorothy Gray. Pauline is a very special person. She was the winner of a gold medal for figure skating in the Special Olympics held in Salzburg, Austria, this past March. Pauline is now practising to participate in the Summer Games in Coquitlam, under the Special Olympics in gymnastics, and if she is successful she will go on to the Canadian finals in the Special Olympics. Would the House please join me in wishing Pauline the greatest of success and best wishes and in welcoming her to the House here in Victoria.

W. Hartley: On behalf of the member for Mission-Kent, I would like the House to welcome 40 students from Hatzic Elementary with their teacher Mr. Mills, and 35 students from Durieu Elementary with their teacher Mr. D. Hughes.

J. Macphail: It gives me great pleasure to see one of the outstanding teachers from my constituency, Mr. Tim Ames, in the galleries today with his students. I very much look forward to meeting with them later on and hope that they learn a great deal from us today. Please make them welcome.

R. Chisholm: It gives me great pleasure today to introduce an old friend from Alberta, Alice Mowick. She is here to gather lessons to take back to Premier Klein. Would you please make her most welcome.

J. Beattie: It's my pleasure today to have in the gallery a good friend of mine from Penticton, Al Tyhurst. Al came from the Prairies back in 1946 and has been a longstanding member of the New Democratic Party. He is active in local politics and is just a fine person overall. Next week is his seventy-sixth birthday. In welcoming him, I hope you'll extend a happy birthday to him as well.

Hon. A. Hagen: Today I had the very great pleasure of hosting Mayor Hiromi Kita and his wife Mrs. Sachiko Kita and councillors from Moriguchi, Japan, to lunch in the Legislature. New Westminster and Moriguchi have the oldest relationship of sister cities in our province. It was a great pleasure to have them as guests of our Legislature today.

Ministerial Statement

PROVINCIAL CREDIT RATING

Hon. G. Clark: I rise to make a ministerial statement. I'm pleased to advise the House that British Columbia's credit rating has been affirmed as the highest among Canada's provinces. Today Standard and Poor's, a major New York rating agency, affirmed British Columbia's credit rating at AA+. On May 14, 1993, B.C.'s credit rating was affirmed by three other rating agencies: Moody's from New York, Canadian Bond Rating Service from Montreal and Dominion Bond Rating Service from Toronto.

The recent down-grading of the federal government debt by Canadian Bond Rating Service means that British Columbia now has the same rating as the nation. However, this puts downward pressure on all of the provinces.

These 1993 ratings attest to the strength of the province's economy and the government's fiscal management performance. In our first budget, in 1992, the government outlined its commitment to deficit reduction. We have reduced the deficit from $2.4 billion when we took office to $1.5 billion this year. During our first budget year, 1993, we reduced the deficit below $2 billion and brought expenditures in below budget. In the current year, 1993-94, the deficit is down to $1.5 billion and spending is projected to grow at only 5.7 percent, down from the 13 and 12 percent growth rates of the previous government.

B.C.'s economic outlook is improving. In 1993 we expect 3.2 percent growth. In 1994 we expect 3.4 percent growth. This means more jobs and opportunities for British Columbians. We expect the improvement in the economy will create 35,000 jobs this year and 36,000 jobs next year. Our leading indicators are positive. Retail sales in February were up 12.3 percent compared to February 1992. Housing starts remain strong. In April 1993, housing starts were up 19 percent from April 1992.

Our economy is outperforming every other Canadian province. We are bringing down the deficit, protecting critical services and creating a climate for investment in British Columbia. In confirming our ratings, all four North American credit-rating agencies have in effect endorsed the government's fiscal plan.

We intend to continue our course of action. We said we would eliminate the deficit and we intend to fulfil this commitment.

F. Gingell: Hon. Speaker, like members of the government caucus, I am pleased that the four bond-rating agencies have maintained British Columbia's credit rating. I warn this Minister of Finance, however, to be very careful about picking statistics that happen to prove the particular point he's making. You can live and die by these statistics. Economic growth in British

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Columbia has been slow at best, and it has been in spite of this government, not because of it.

I appreciate that this government inherited from the previous government the practice of increasing spending, which leaves something to be desired. I understand the kinds of problems they were faced with, but federal and provincial governments must learn and understand the difficult times. You have managed to scrape through this time, but don't play chicken with the B.C. economy and the deficit. Bring in good tax laws and economic programs that will cause good economic growth in this province, because otherwise our credit ratings will be taking the same kind of route that they have in Ontario, Newfoundland and the prairie provinces.

[2:15]

J. Weisgerber: Talk about cutting the cloth to fit the issue! Here's a government that in its first year in office saw the credit rating of this province drop from AAA to AA+, and that is now trying to maintain that keeping a rating only as good as the rest of the country is something to be proud of.

The reality is that this government has come into office and increased provincial debt at an incredible rate, doubling it in two years, by an amount equal to that accumulated in 125 years by all governments combined. It's no wonder that bond-rating agencies are nervous about what this government is doing. To deliberately misinterpret this information on credit ratings is not acceptable. The Minister of Finance has selected certain items and tried to intimate that somehow the bond-rating agencies are endorsing his government's actions. Nothing could be further from the truth.

They are sending out a clear warning to this government and to every other government in the country to get their spending in line with their incomes.

Bond ratings in British Columbia and across the country will fall unless the government is prepared to take the kinds of tough steps that this government, this Finance minister and this Premier to date haven't had the courage to do. When they have found the courage that they were so willing to talk about in the throne speech and when they've taken some real action, then I will be willing to endorse those actions. But today those words ring hollow, hollow, hollow.

Oral Questions

LABOUR DISRUPTIONS IN SCHOOLS

F. Gingell: Strikes in the school system have been continuing for weeks now. The Vancouver strike appears to have no resolution between the BCTF and school trustees. Both the Minister of Finance and the Minister of Labour continue to tell this House that there's no more money. Schools in Surrey are now out. Bulkley Valley is on strike. Kitimat teachers are on strike. North Vancouver....

The Speaker: Your question, hon. member.

F. Gingell: The Labour Relations Board has not said that grade 12 is an essential service, only that it could be. Now the Premier says that he has a deadline.

The Speaker: Order, order. Hon. member....

F. Gingell: I'm going to ask a question right now.

The Speaker: I do hope that the hon. member is stating the question immediately.

F. Gingell: Hon. Speaker, the Premier has said that he has a deadline, but he won't tell us when it is. This is adding to the confusion. Will the Premier today make public when his deadline is?

Hon. M. Harcourt: The Minister of Labour would be more than pleased to bring the Leader of the Opposition and the House up to date on the discussions that he has had with the school trustees of the Vancouver School District and with the teacher union representatives.

The Speaker: Supplemental, hon. Leader of the Official Opposition.

F. Gingell: This posturing by the Premier with an imaginary deadline is not convincing anyone. Will you please take the pressure off? Tell us when your deadline is, or tell us if you really believe that having an imaginary, secret deadline is going to get this matter resolved?

Hon. M. Sihota: I'm pleased to advise the House that this government is working to resolve this and other disputes. I'm pleased to advise the House that 43 of the 50 contracts settled to date have been settled without any type of disruption whatsoever.

With regard to this situation in Vancouver, I'm pleased to advise the hon. member that this morning I had occasion to meet with representatives from the Vancouver School Board and representatives from the Teachers' Federation representing the teachers in Vancouver. I had lengthy discussions with them and told them that the government does have some deadlines in place with regard to designation of essential services. I advised them that it was our preference that they get back to the bargaining table and told them that we expected them -- I'll speak slowly so the hon. member can understand -- to get back to the bargaining table. The teachers made a commitment....

Interjections.

The Speaker: Order, please. I must ask the House to come to order and listen to the answer to the question. I must ask the minister to quickly wind up his reply.

Hon. M. Sihota: We advised the parties that we expected them to get back to the bargaining table. I'm pleased to inform the House that teachers have agreed

[ Page 6475 ]

to meet with Mr. Foley tomorrow and that the trustees will consider this request tonight. I'm pleased to advise the House that as far as the designation decision goes, we've indicated that we will not make a decision today.

G. Farrell-Collins: It's amazing that after two and a half weeks -- we're now into our third week -- the minister is pleased that there's more talk going on. What the House wants to know, what the people of this province want to know, and what the students of British Columbia want to know is: what is the deadline? Are these students going to get back to school before the end of June, and are they going to be able to write their exams and score reasonably well?

Interjections.

The Speaker: I will wait for order before I recognize the minister.

The Minister of Labour.

Hon. M. Sihota: What the people of British Columbia want to know is: why is it that the Liberal opposition never once in this House raised the issue of the Powell River dispute? It's out of sheer political expediency that they want to raise the Vancouver issue now. They had no concern about the welfare of the students in Powell River. The hon. member never once raised the issue of Powell River.

Interjections.

The Speaker: Order, please. Again I must ask the House to remain in order while questions are being answered. I must remind the minister to please address the question and do so as briefly as possible.

Hon. M. Sihota: I appreciate that there are divisions within the Liberal Party and that those calculations drive the questions that come up in this House -- hence, no questions on Powell River; hence, questions today on Vancouver, when the hon. member knows full well that this government has made a commitment. We met with the parties today, and a course of action has been developed as a consequence. We fully expect and hope that the parties will meet with Mr. Foley tomorrow.

The Speaker: A supplemental, hon. member for Fort Langley-Aldergrove.

G. Farrell-Collins: What this minister should know is that the member for Powell River-Sunshine Coast was involved in that dispute from day one until the last day. It's his constituency, and he can deal with it of his own accord.

Interjections.

The Speaker: Order, please.

Interjections.

The Speaker: I call the House to order!

Hon. members, I asked for order so that the minister could answer a question; I think, in courtesy, we also must have order so that members can ask a question.

Please proceed with your question.

G. Farrell-Collins: When a member of my caucus chooses to involve himself in a dispute and asks to deal with it on his own, then I allow him to do that.

The Speaker: Question?

G. Farrell-Collins: What the people of British Columbia want to know.... The people of the Bulkley Valley, Surrey and North Island had to wait six weeks, because this minister didn't do anything. When are these people and these students going to know what the Premier's imaginary deadline is? When are the students finally going to get back to classes in British Columbia?

Hon. M. Sihota: The hon. member is quite correct: the leader of the Liberal Party did do a good job discussing these issues with me from time to time outside the House. The point here is that the hon. Liberal Labour critic never once raised these issues, and I suspect that's partially because he's the co-chair of Gordon Campbell's campaign team. I have to wonder whether it's true that Gordon Campbell is now setting the agenda for questions to be asked by the opposition.

The Speaker: A final supplemental, hon. member for Fort Langley-Aldergrove.

G. Farrell-Collins: The minister may find himself to be humorous and his caucus may find him to be humorous, but the reality is that the people of this province are dismayed and disgusted by the inaction of this minister and this Premier...

The Speaker: Your question, hon. member.

G. Farrell-Collins: ...in dealing with the strikes in this province. When are the students going to get back into classes? When is the Premier finally going to take charge of his government and his cabinet and get the students of British Columbia, including his own, back into school where they belong?

Hon. M. Sihota: Hon. Speaker, the only thing that's humorous in British Columbia today is the state of the B.C. Liberal Party.

J. Weisgerber: My question is the Minister of Education. The Minister of Education has an obligation to ensure that all students have equal access to education. This minister has a responsibility to demand that education be deemed an essential service and that teachers be ordered back to work. When is the minister going to live up to her responsibility to the students, parents and the teachers of British Columbia?

Hon. A. Hagen: The current disputes in two or three districts in the province concern all of us. We need

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the timely support of teachers and boards to recognize their responsibilities to students to ensure that classes are open, so that all students have an opportunity to learn. Throughout the current disputes this government has offered its support to those people who are responsible for making decisions and settling those disputes within the resources available to them. The Minister of Labour has just outlined to this House the course of action which he took this morning in meeting with the parties and in getting their cooperation for a speedy resolution. That, hon. member, is what will ensure a stable, secure education for the students who are currently affected by these disputes.

The Speaker: Supplemental, Leader of the Third Party.

J. Weisgerber: The two or three districts that the minister so casually dismisses contain about 100,000 students. The minister is so firmly under the thumb of Ray Worley and the BCTF that she's afraid to take any action to get students and teachers back to the classroom. Will the minister stand up for her responsibility as the Minister of Education, put her job on the line and demand that education be deemed an essential service and that teachers be ordered back to work immediately?

Hon. A. Hagen: This minister, since she was given responsibility for the children of this province, has stood up for them. The children of this province are a responsibility which we all share. We, as government, have a responsibility for children -- so do school districts, and so do teachers' organizations.

[2:30]

There is, in fact, no sacred cow in this particular dispute. There is a responsibility for boards and teachers to exercise their rights, as responsible parties, and to come to resolution of these disputes within the resources available. There is a responsibility of this government, through the good offices of the Minister of Labour and its cabinet and caucus, to support those endeavours. I am very hopeful that those parties, having recognized that they alone can find that resolution, will do so in a timely way and that every student will be back to school within the next few days.

J. Weisgerber: I think the minister doth protest too much. The BCTF's submission to the Korbin commission boasted: "On average, in the first four and a half years of teachers' collective bargaining, a B.C. student will have lost less than 0.8 of a day of classes per year. That's less" -- according to the BCTF -- "than the time lost to sniffles and snowfall.

There hasn't been a measurable long-term impact on students' progress flowing from any teachers' strike." In light of that ridiculous statement, in the circumstances in British Columbia today, is the Minister of Education and Deputy Premier prepared to stand up and commit the government to provincewide collective bargaining to put an end to this nonsense?

Hon. A. Hagen: This member brought in the current scheme of bargaining during the tenure of the previous government. Our government has said we want to look at the nature of bargaining in the public sector, including education. We have asked Commissioner Korbin to do that. Her report is due very soon. I have said unequivocally that this government will be looking at that report in a timely way.

As Minister of Education I will be very interested in that report and ways in which, over the long term -- not with legislation that's brought in the back door with the Minister of Labour and the Minister of Education not even knowing about it -- we can establish a regime of collective bargaining in the education sector that will serve our students and is also fair to the people who work in that system. We are committed to doing that as we work with the Korbin commission in the year ahead.

Ministerial Statement

ABORIGINAL AWARENESS WEEK

Hon. A. Petter: It's a privilege to announce today that the week of May 24 to 28 has been proclaimed Aboriginal Awareness Week in British Columbia. It's fitting that the province is officially proclaiming this week for the first time in 1993, given that the International Year of the World's Indigenous People has been declared by the United Nations, and given that the theme of that year is a new partnership.

This government is working hard to build a new partnership with aboriginal people in this province. We are honouring a commitment that was made to first nations to set right longstanding injustices, and to address issues of fundamental importance to aboriginal peoples. Just last week the Treaty Commission Act was introduced, marking a final step in the process of establishing the British Columbia Treaty Commission. By moving toward the negotiation of fair and honourable treaties with first nations, we are striving to build a stronger, more just and prosperous British Columbia for all citizens.

I wish to emphasize the importance we attach to including all British Columbians in building this new relationship with aboriginal people. To that end, Aboriginal Awareness Week will provide an opportunity for British Columbians to become more aware of aboriginal people, and to learn more about aboriginal peoples' heritage, languages and cultures. It is only through this awareness and knowledge that we can move closer to understanding and respecting one another. Many aboriginal cultural events are taking place during this week and throughout the international year. I encourage all members of this House to attend and participate whenever possible.

I would like to briefly share with the House the text of the proclamation, which reads as follows:

"Whereas the Government of British Columbia acknowledges and wishes to support the United Nations in declaring 1993 the `International Year of the World's Indigenous People,' and

"Whereas the diversity of the heritage and culture of aboriginal peoples in British Columbia is recognized and valued, and

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"Whereas the government of British Columbia wishes to encourage trust, cooperation and understanding between First Nations and all other British Columbians by proclaiming Aboriginal Awareness Week, and

"Whereas Our Administrator, by and with the advice and consent of the Executive Council, has been pleased to direct by Order in Council in that behalf that a Proclamation be issued designating 1993 as `International Year of the World's Indigenous People' and May 24 to 28, 1993, inclusive, as `Aboriginal Awareness Week' in British Columbia;

"Now know ye that We do by these presents proclaim and declare that 1993 shall be known as the `International Year of the World's Indigenous People' and that May 24 to 28, 1993, inclusive, shall be known as `Aboriginal Awareness Week' in the Province of British Columbia."

V. Anderson: I rise to affirm recognition of the International Year of the World's Indigenous People with the United Nations, and commend them for this awareness that all of us must have. Part of our history, as in many countries of the world, has been vastly overlooked as we extended empires and neglected the people who were originally on many of the lands that were overtaken. Within our own land, it is important that we celebrate and recognize Aboriginal Awareness Week, not only in this week of May 24 to 28, but every day, all year.

We have lived side by side for many generations in this country, and it is a shame upon all of us that we have not had that kind of awareness of each other and not lived in common cooperation. It is important that we highlight the need to do so, and this is one opportunity.

J. Weisgerber: I'm delighted to have an opportunity to join in recognition of this week as Aboriginal Awareness Week. Indeed, it's something that we should be aware of 12 months of the year -- year in and year out -- and not only in a year that is designated by the United Nations.

British Columbia has a marvellous history of aboriginal languages, heritage and culture, which are so diverse in this province. There is no other region of North America -- or, to my knowledge, anywhere in the world -- that has the richness and diversity of language, culture and heritage that this province has.

I think that as British Columbians we are just coming to recognize what a tremendous wealth, asset and heritage we have as British Columbians -- not only aboriginal people -- and I hope that we will continue to focus on this tremendous heritage we have as a province and as people, and join with aboriginal people in preserving, as we have been doing over the last few years, this treasure that we have in British Columbia.

H. Lali: I request leave to make an introduction.

Leave granted.

H. Lali: I notice in the galleries here today one of my aboriginal leaders from Yale-Lillooet. Would the House please make Chief Byron Spinks of the Lytton first nation welcome.

G. Farrell-Collins: On a point of order with regard to question period today and standing order 47A, of which you've reminded us numerous times. I would ask the Speaker perhaps to take some time to review question period and make a ruling on that. We do so on a regular basis and find that questions seldom extend beyond 30 seconds and answers of late have been up to almost two and a half to three minutes. Hon. Speaker, in the interests of standing order 47A and balance and fairness in this House, I would ask that you make a ruling certainly on some of the answers we are receiving from the government, including today.

The Speaker: On the point of order, the Government House Leader.

Hon. M. Sihota: Hon. Speaker, I don't think the problem is with the rule or the answers or the questions. The problem is that the hon. member can dish it out but has trouble taking it.

The Speaker: Is this a submission on the point of order, hon. member from Chilliwack?

R. Chisholm: Yes, it is, hon. Speaker. As a matter of fact, we've done a study. The government has broken the rule 54 times, and that was with two and a half minutes; the opposition has only done it eight times. The whole point is: if we are to have a question period and to justify a question period, both sides of the House have to honour both sides of the House. Until that happens and until we obey

article 47A, I am afraid we're in for trouble with question period.

The Speaker: On the point of order, as hon. members well know, the Chair has from time to time reminded the House about the rules of question period. While the Chair is hesitant to intercede any more than is absolutely necessary, I would remind hon. members that the Chair does try to keep a close watch on questions and answers and does do an analysis from day to day. I can only urge those members who are asking questions to be as brief as possible and to state their questions without argument or opinion, and I can only urge those ministers answering questions to do exactly the same.

But in the end, the Chair needs to rely on the cooperation of both sides of the House to ensure that question period goes as smoothly as possible and without disruption. I would ask all members to review the standing order related to question period and the guidelines -- as all of you have been asked to do from time to time -- and to try to follow those guidelines.

Orders of the Day

Hon. M. Sihota: Hon. Speaker, I call committee stage on Bill 22, the Treaty Commission Act, in this chamber.

I also advise members that Committee of Supply A will convene in the Douglas Fir Room to deal with the estimates of the Ministry of Environment.

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TREATY COMMISSION ACT

The House in committee on Bill 22; E. Barnes in the chair.

section 1.

G. Wilson: In opening this committee stage, let me say that

section 1 of this particular bill, the

interpretation, has much to be debated and discussed because the

definitions provided are what the minister needs to clarify for us. It's important for us to note that the

definitions, particularly with respect to the agreement, recognize that this act is -- one would assume -- almost an enabling piece of legislation allowing an agreement previously made to proceed, without reference to or debate in the Legislative Assembly.

[2:45]

We spoke on the bill in second reading, saying that we generally supported it in principle. There is some concern -- certainly within the mind of this member -- that this is a very complex bill that has been with this minister for well over two weeks and that is now before us in committee stage, with invitations already submitted to a reception to hail its passage tomorrow. I find that to be contemptuous of this parliament and the members that are elected to debate the issues on it. I want that to be on record in Hansard.

When a bill with such magnitude comes before the people of this province, there should be no constraint or restriction on their time to debate this without pushing us into early hours in the morning to have that debate concluded -- notwithstanding a party that the minister and the government may wish to have to celebrate its passage.

Having said that, perhaps I'll yield to the member from Langara, and then we'll go through

section 1.

V. Anderson: When we look at this first

interpretation section, we do need to get some clarification of its meaning. In the first section, when we talk about the agreement between the various parties, it says: "...any amendments thereto that may be made from time to time." Could you explain by whom these amendments are to be made, how they will be made and what the position is of those amendments?

Hon. A. Petter: Let me say, first of all, that the purpose of the legislation is not simply to give effect to the agreement -- the agreement could have stood without the legislation -- but to provide an opportunity for the Legislature to debate its provisions, and to give them legislative legal status. I see the member shaking his head in a negative direction. I take it what he means by that is that the agreement provides for an introduction of legislation. My point is that the treaty commission could have functioned without an opportunity for public debate in this Legislature had the parties agreed.

The opportunity to come to this Legislature and debate it is a strong signal that we as government, and parties to this agreement, want to see a full airing of the issues and want all members to have an opportunity to participate in the debate on these important issues. I see it very much as affirming the desire for a full, open discussion expressed by the member for Powell River-Sunshine Coast.

With respect to his comments about the passage, those matters were discussed and agreed to among House Leaders, and I'll leave him to work out those disagreements within his own caucus. But certainly it's our intention to afford a full opportunity for debating all the issues that he might wish to raise.

With respect to the issue raised by the member for Vancouver-Langara, the way in which the agreement might be amended is the way in which it was entered into by the three principals; that is, the first nations summit and the federal and provincial governments would have to agree to it. But I would hasten to add that the legislation has the force of law and must therefore take priority over the agreement. So if amendments were contemplated that in any way contradicted the legislation, those amendments would require a change in legislation in order to be effective.

V. Anderson: Since the minister has raised the question, perhaps we might follow up. He has said that the agreement might stand in its own right. And he has just said now that the legislation would override the agreement, which requires clarification. Also, there were 19 recommendations that came out of the task force. We've had the task force and the agreement and now the legislation. The implication seems to be that each of these stands in its own right and has authority in its own right, and yet on the other hand the minister is saying they are separate from each other and each of them is not affected by what we're doing today.

Hon. A. Petter: I'd be happy to clarify that point. The three work together in a happy partnership. The agreement refers to the excellent recommendations of the task force and the legislation refers to the agreement. The point I was making, in response to the comments earlier by the member for Powell River-Sunshine Coast, was that one could have had an agreement without legislation.

But it was the common desire of all the parties that there ought to be a legislative basis on which this process takes place, to give it stability and permanence and to provide an opportunity for the Legislature to debate this very important issue. For that reason the legislation provides a framework that will guide the process. The legislation is designed, however, to work in a complementary fashion with the agreement, which in turn works in a complementary fashion with the report.

The point I was making is that should amendments be contemplated, they would necessarily have to be consistent with the legislation, because within the doctrines of parliamentary supremacy, this happy partnership does have an internal hierarchy, and the hierarchy is one in which the legislation has the force of law. The agreement carries with it political obligations, but ones that must be consistent with the law as it will when encompassed within this act if it's passed.

V. Anderson: Just a little further clarification on that same point. Is the minister saying then that neither

[ Page 6479 ]

the terms of the task force nor the terms of the agreement can be altered or changed without coming back to the Legislature?

Hon. A. Petter: I'm not saying that is the case. What I'm saying is that the agreement can be amended and those amendments can take place, as amendments to any agreement can, by virtue of the agreement of the three parties. In fact, there's explicit provision later in the act which deals with that very issue. However, any changes to the agreement must conform to the law; and if they didn't, they wouldn't be effective.

So I'm assuming that if there were a change to the agreement that contemplated some change in the provisions of this act, that that would necessitate coming back to this Legislature and seeking a change to the act. If a change to the agreement can be accomplished within the framework of this act, then that change can take place without necessitating a change in the provisions of this legislation. Therefore there would be no necessity to come back and introduce a legislative amendment or have a debate on that change.

However, it would require the concurrence of three parties and would no doubt receive a very public airing through debate in this Legislature, through question period, estimates debate or any number of other opportunities that the member might wish to avail himself of.

V. Anderson: To follow that up for a moment, it seems fairly important about how the future can progress. Would it be fair to say that if there were an agreement of the magnitude that even questioned that the facilitating committee we're setting up by this act would then be in a position to say that the parties were not in readiness to go ahead with negotiations.... Could it be of the magnitude that there is a check and balance which indicates readiness? If they need to go back and alter the agreement in any significant way, they would really be indicating that they did not have a common readiness to move ahead.

Hon. A. Petter: I'll try to be as clear as I can, but I'm not sure I fully understand the question. We may have to have another interchange, but I think the answer is that if there were a change to the readiness criteria as stated in the act, then that change would have to be brought about not only through a change to the agreement but also through a change to the legislation.

If there were a change to the readiness criteria that was not inconsistent with the act but was a refinement that fell within the terms of the act -- because the agreement was more specific on some details -- then that would not necessitate a change in the legislation. The idea here is to provide some flexibility. If the commission finds itself in a situation where the more specific criteria set out in the agreement are not working for some reason, there will be an opportunity to make changes. However, if some more fundamental change is necessitated, then that would require a change in the legislation.

What we have tried to accomplish through the legislation, in cooperation with the other two parties to the agreement, is to set out the fundamental terms under which the commission will operate. If changes to those fundamental terms are contemplated, then indeed changes to the legislation would be required. If changes to lesser elements of the agreement that can operate within those fundamental terms are contemplated, then no such amendments to the legislation would be required.

But as I said before, there would be ample information shared about that and, no doubt, the member could raise it in debate in the Legislature.

V. Anderson: If I understand correctly -- and I think I've heard the minister fairly clearly in this regard -- what he is saying is that there is legislation to put the process into law, but that this legislation has, by design, left some openness -- flexibility, as he calls it -- outside of the law in order that the process not be hampered. I'll leave that for the moment.

When we go to the definition of "first nation," it talks about the aboriginal people within their traditional territory. This is a fairly key element in the discussion. How does the minister define and give meaning, in this particular sense, to traditional territory? How that is arrived at seems fundamental to the recognition of the first nations people who are part of the negotiation? It's a kind of circular discussion.

Hon. A. Petter: There are a number of chicken-and-egg elements in this whole process of treaty negotiation. We're trying to work towards a situation in which we recognize certain rights based upon notions like traditional territory. Indeed, the negotiation process will help us define the very things that will also help us determine who we should be negotiating with. The intention here is to give to the commission, in applying its criteria of readiness and ability to negotiate, some sense that there must a relationship between the particular first nation and the territory that is being claimed.

Once that relationship is established to the satisfaction of the commission, it will then be left to the negotiating process to determine the extent to which that traditional territory is or is not recognized as asserted, and the form that recognition will take through the treaty process.

V. Anderson: To clarify then, the minister is saying that a first nations people would come forward and designate who their people are and how they have mandated them. These people would bring forth a description of the land which they designate as their territory. That designation would then be carried forward into the treaty discussions and, in the final analysis, might or might not be recognized within those treaty discussions. Am I right in that understanding?

Hon. A. Petter: Yes, I believe that's a correct understanding.

V. Anderson: I'll move along to the question of principals. Just for clarification here, I understand that the principals here refer to the aboriginal people as represented through the summit and as represented also by the two governments, the federal and provincial. Those three principals are given equal status within this agreement, if I understand that correctly.

[ Page 6480 ]

Hon. A. Petter: That's correct.

V. Anderson: Also, I'd like to have some description of "summit." Could the minister explain how the summit was arrived at? How many aboriginal people are part of that summit at the moment? If there are others who are not presently part of that summit, will they able to join over the period of time ahead of us?

Hon. A. Petter: Yes. The summit is an organization that was essentially formed for the very purpose of coming together to enter into treaty negotiations. You'll note in the act that summit is defined as "the body that is established to represent first nations in British Columbia that agree to participate in the process provided for in the agreement...." So the summit is, in a sense, a fluid organization of those first nations that wish to participate in this process.

[3:00]

I think it's a little difficult to pin down exact percentages. It's certainly my estimation that the preponderance of first nations in the province are affiliated with the summit, but it's by no means the case that all first nations are. However, by virtue of this definition, any first nations that wish to avail themselves of this process would be free to join in and therefore become part of the summit.

Having said that, I should make it clear that the task force report was very insistent that this be a voluntary process. It may not be a process that will suit all first nations, and we must accept that and expect that some first nations, for whatever reasons, may not wish to associate themselves with this particular process. For that reason, this is a voluntary organization. First nations must decide for themselves if they wish to be associated with the summit and, by doing so, with this process.

V. Anderson: Does that imply -- and I trust that it may well -- that those who do not wish to use this particular summit process to negotiate may have opportunities to use other processes that may be developed by the federal and provincial governments in working with them, so that they're not excluded in the future from dealing with their land claims in the same manner as others if they choose a process other than the summit?

Hon. A. Petter: I think I would answer in this way: a tremendous amount of effort has been expended over a number of years under a number of governments to produce this process. It's my very sincere hope that this process will, if not today then over time, prove itself and be one that at least the vast majority, if not all, of the first nations of the province, will choose to avail themselves of.

In the more abstract and hypothetical terms, which I as a minister am never encouraged to answer in, this government's commitment is to resolve these issues with the first nations in the province, and that means all first nations. If some, at the end of the day, do not find this process acceptable, then I think we as a government must be open to alternative processes. In some cases, some of the first nations may not find it acceptable because they view their relationship as a bilateral one with the federal government, and they don't believe that the province should have a co-equal role.

That may give rise to a different formulation in which the province may not play a role, or at least will play a diminished role. So, in abstract terms, yes. In the more practical terms of today, it's my very sincere hope that over time this process will prove itself and recommend itself to the vast majority of first nations.

D. Jarvis: I assume that the summit is now based on the bands that agreed to sign up to participate in the process. During a briefing the other day, I asked your deputy how many bands had actually signed up for it, and he said that he didn't know, which was amazing to me. He said he would look into it and find out. Do you mean to say that at this point you still have not found how many bands of the 197 are a part of the summit and how many aren't?

Hon. A. Petter: One thing that one learns in this role is that aboriginal politics is almost as perplexing in this province as non-aboriginal politics. The summit is not an organization like a social club that one signs up to. It's an organization in which first nations choose to participate in or not to participate in. That choice may change over time. There is no membership role as such. Some first nations, for example, have participated in the summit at various stages and not at others. Some who have not participated in the past may choose to participate in the future.

Some may choose to participate in the summit and other organizations that might appear to have conflicting goals. That causes some difficulty.

I've said my best estimation is that this organization represents certainly a preponderance of first nations in the province. The task force report made it very clear to us that it was for the first nations to organize themselves, not for us, as federal or provincial governments, to dictate to first nations how to do that. Our concern is that the summit represent those groups who choose to associate themselves with it. Those who do not need not avail themselves of the process. In my view, certainly the vast majority of first nations in the province have participated in the summit at some time.

G. Wilson: Let me say that every elected member of this assembly enjoys an effective lobby by a member to a minister, but I wonder if the lobby that's taking place between the member for Cowichan-Ladysmith and the Minister of Health might be done at slightly less volume so that we could, in fact, listen to this debate without distraction. I appreciate that.

The Chair: Order, please. The hon. member for Powell River-Sunshine Coast makes a very good point. I don't think he penetrated certain ears. I would ask the hon. members who are having conversations to keep in mind that we are in committee. There is a dialogue taking place that's difficult for members to hear. Just keep that in mind.

[ Page 6481 ]

G. Wilson: As I say, we all enjoy an effective lobby, but there is a time and a place.

I come back to the point that was raised by the member for Vancouver-Langara. It's a point of contention that I think needs to be clarified. The first point deals with the political legitimacy of this agreement. I read the British Columbia Treaty Commission agreement that was signed by the Premier, the Prime Minister and a series of representatives of first nations people. That came about as a result of the recommendations that were brought before this government and reviewed. I want to make it very clear that the minister has said that if there is a deviation from this Treaty Commission, this legislation may have to be amended. Yet clearly the

interpretation under the agreement suggests that any amendments thereto may be made from time to time to this agreement.

Furthermore, when we get to the end of this bill and look at

section 24, which we will discuss in more detail at that point, it says that nothing in this act must be interpreted as preventing the principals from amending the agreement. You can't have it both ways.

Furthermore, the Treaty Commission agreement required the Minister of Aboriginal Affairs to introduce legislation to the British Columbia Legislature to establish the commission as a legal entity. It would appear, for those that have not been as involved as the minister but who are reading what is written here, that this legislation under the definition of agreement provides legal status for what is here, and does not prevent this agreement from being amended from time to time. I wonder if the minister can clarify that point.

Hon. A. Petter: We can debate in more detail, as you suggest, when we get to those sections of the act which deal with that question. The situation is that the agreement is subject to law, and the act therefore takes precedence over the agreement. The agreement can be amended, but if any attempt were made to amend the agreement in a way that is inconsistent with the act, the amendment would be inconsistent with law and therefore ineffective.

I made the point -- perhaps I should have made it with a little more care to the fine details, but I made the point -- that if one were to contemplate an amendment to the agreement that was in any way inconsistent with the act, it would follow that if the change were to be effective, one would have to amend the act as well. That's the point I was making.

G. Wilson: If that's so, then that is what it should say. If this is intended to be superior legislation for this legislative body and/or the federal legislative authority, which I understand is going to place mirror legislation before the people of Canada through the federal House, then presumably there should be something in here that says so. Nothing in this bill says that the agreement.... It seems to be the agreement; it has the signature of the Premier and the Prime Minister, and it gives broader powers to the commission than does this bill.

There's nothing in here that says this should be prevented from happening. Maybe it shouldn't be prevented from happening. Maybe it's a good process for us to work through. Time will tell.

The point is, I think the people of B.C. need to know what the process is going to be with respect to clarification of that question. The way that the minister has described it, we're likely to walk into a potential confrontation over jurisdiction if we get into, let's say, readiness. The question of who is ready for negotiation and who isn't is going to be a very thorny issue.

Hon. A. Petter: I really didn't think I would have to explain to the hon. member that parliamentary sovereignty and legislative supremacy are fundamental notions that one doesn't have to state every time one enacts a bill. As a lecturer on some of these matters, I thought this would be understood.

The fact is that the agreement is a political agreement, not a contract. It's a political agreement reached among the principals, who desired to embody the fundamental principles of the agreement in

an act. The two work happily together. The agreement provides some greater detail as to how the commission is expected to discharge its functions as articulated in the act. There is no reason for any concern. Everyone well understands that

an act passed by this Legislature takes precedence, to the extent of any conflict over an agreement. However, I don't see any such conflict. At the time, the issue arose as a hypothetical question on what would happen if we in fact chose to amend the agreement. Very clearly, the answer is that any amendment that tried in some way to contradict the act would be ineffective by reason of the fact that one is legislation and the other is a political agreement. One doesn't have to state that for everyone in this country to understand it.

G. Wilson: I understand the academics and the legalities. I also understand that an expectation is being created through this commission, which I think is a positive one for all people, and that there are going to be some extremely difficult turns in this road we're now on. I think the minister mentioned in his opening statements that this is not going to be an easy course of action. Many variables will have to be looked at, and one of them is the authority of the agreement versus this legislation.

Even as the minister shakes his head and says, "No, no, that isn't going to happen," a number of things can occur, one of which is a change in administration in the province. Another is a change in administration of the so-called summit -- who is a member and who isn't. There could be a change of political direction within B.C.'s complex and varied aboriginal politics, which the minister knows only too well.

There are many variables that can change. This commission, if it is to do its job effectively, has to make sure that its lines of jurisdiction are absolutely clear. The minister is saying that if the amendments will in some way counter the legislation.... I'm hearing a moral obligation, but I don't see any legal requirement for this House to have the opportunity to amend. As a result of that, the authority is being given to and rests with this commission, not with the duly elected Members of the Legislative Assembly.

[ Page 6482 ]

Hon. A. Petter: I'm very perplexed with this line of questioning. The commission could have been created without any opportunity for this Legislature to be involved, simply by providing for an agreement among the principals. The choice was not to do that. The choice was to create, through enabling legislation -- that's all this legislation is -- the recognition, in law, of the status of the commission and set down the general parameters under which the commission is expected to operate. For further guidance, there is reference made to the agreement, and through the agreement to the report of the task force. That will assist the commission in applying the general guidance of the legislation.

It's all working happily together. The member is imagining scenarios that simply do not exist. This is enabling legislation. No doubt the commission will have a very difficult task in deciding whether parties are or are not ready. Remember, changes to the legislation can only come about through changes in two legislatures. The summit changes to the agreement can only come about through agreement among the three parties. There is no likelihood of this causing a problem. What we have done here is provide legislation that sets out the general parameters and an agreement which provides greater detail; the two work very happily together.

[3:15]

G. Wilson: I accept that the minister is saying that these concerns don't exist now, and that I'm projecting into the future things that may or may not occur. That's absolutely what we're supposed to be doing as legislators when we enter into this proposition. We're supposed to look into the future to try to determine what may be obstacles and try to correct them in the base legislation that's initially brought in.

I point out to the minister that this is not an ordinary piece of legislation. Not only is there a question on a land claim that is up for discussion, but the whole question of jurisdiction over that land claim and status of government is under discussion and negotiation in this province. For the minister to simply dismiss this in forms of legislative academics is really unfortunate because this is a very complex set of negotiations.

Those of us who remember the constitutional round know how difficult those negotiations were. People who looked at the legitimate grievances of aboriginal people recognized there was something that needed to be done. We had to move relatively quickly so that the moderate forces in the administration of those bands would not lose to the more radical groups. We didn't want to see social disruption and unrest in Canada. We wanted to have just settlement -- all of us do.

What I'm trying to do is flag what might be a potential problem; I'm not trying to exacerbate this debate. I'm simply saying: "Has the minister thought this through?" One of the things that we are likely to run into in the process by which we are bringing this in -- and process is extremely important; I've already registered my concern with the time lines that have been given this debate -- is that amendments to the agreement will be forthcoming. Nobody knows how it's going to work. The players themselves are going to want to have that flexibility.

I think it was correctly pointed out by the member for Vancouver-Langara that this bill provides maximum flexibility for that to occur. Probably that's the way it has to be in order to work.

What I need to hear the minister say is that the duly elected members of this Legislative Assembly will have final authority over the jurisdiction and discretion of this commission in its actions in the province of British Columbia; and that we will not, if the majority of those present are from the summit and from the federal government, be shackled into an agreement that the people of this province will not favour and that can be forced upon us by two parties, the federal government and aboriginal commissions.

I invite the minister to think back to this last constitutional round when there was a lot of closed-door meetings, a lot of negotiations and something that the political elites in this country came up with. In order for it to sell it has to be first of all understood by all British Columbians, aboriginal and non-aboriginal alike. Secondly, it has to meet the test that the provisions of settlement have to be of a quality that will not favour one set of people over another. Without that, it will not sell, and it will be a recipe for social disruption. I would like the minister's response to that.

Hon. A. Petter: I would remind the member that the Treaty Commission is a facilitator, a keeper of the process; it doesn't bind the government in any way. It is to advise governments and the First Nations Summit on a number of issues and through those governments to advise the public on a number of issues. There are ample protections built into this process. Indeed, one of the reasons I felt particularly pleased this was being brought forward to the Legislature in the form of legislation was that any fundamental changes in the operation of the commission would require the approval of the Legislature. You have my assurance on that, but the best assurance of that is the bill itself.

Interjection.

Hon. A. Petter: Well, you can't change legislation without bringing it back to the Legislature, hon. member. That happens to be the rules of this place. Beyond that, if there are changes to be made that are interstitial -- minor changes that in no way undermine the fundamental principles of this bill -- they can be made, but they can't be made by two parties, in the rather evocative way the member suggests, shackling the third. They require the approval of all three parties as well.

So you have two assurances. You have the assurance that this legislation sets out the fundamental principles under which the commission will govern, and that it cannot be changed except by this Legislature. Secondly, you have the assurance that the agreement itself, if it were to be changed in a way consistent with these fundamental principles, would still require the approval of all three parties, including the province of British Columbia.

[ Page 6483 ]

G. Wilson: I know that we're only in the very first

section here with respect to

definitions and therefore that we can't get into the powers of this commission in this debate, but we will. I just flag this minister's comments when he says that you can't amend this act without coming before the Legislature. I understand that. But you can amend the agreement that this act is all about, and the agreement does provide this commission with a far wider range of duties and powers than the act provides.

Hon. A. Petter: No, it doesn't.

G. Wilson: Well, when we get to that section, we'll go through it line by line, and I will point out where it does. We're looking here at enabling legislation -- the words the minister uses himself -- to empower this agreement. Therefore the people of British Columbia have to know that the agreement is at issue here as much as this legislation. You can't look at the two independently; they are intrinsically tied. My suspicion is that when you read the context of the agreement.... I'm not arguing that this is necessarily a bad agreement.

It might be a very good agreement; it might be exactly what British Columbia needs. But let's not fool ourselves into thinking that when you come down to work out the terms of reference and the operational guidelines for this commission...it will be this agreement that will be used, not this legislation. The legislation itself -- and when we get to that section, we'll deal with it -- only provides that the governments may use the recommendations of this commission; and yet this commission agreement says very clearly that those powers are far more forceful.

However, having said that, I would like to move on to expand a little bit on the point raised by the member for Vancouver-Langara about first nations. In looking at that definition, I have some fairly significant concern with respect to three words, which are very important for us to look at. The first is "traditional territory." The minister says it's a chicken-and-egg question, and it is. But the question is: where do we put the emphasis -- on the egg or on the chicken? You can't do both equally here.

This is a problem, because there are a very substantial number of aboriginal people in the province of British Columbia who do not live on reserve and whose rights have to be protected, maintained and looked after on a basis equal to those who do live on reserve. I then come to the second word I have difficulty with: "mandated." It says: "...mandated by its constituents." That's the third word: "constituents." I don't want to be inflammatory in my words here, but nevertheless, I think we need to get this debate thoroughly on the table; it's time that we did.

I would far prefer to have members of first nations here to answer me directly on some of these questions -- that would be most helpful. In the parliamentary reform that I would advocate, they would have that opportunity. However, since they're not, what is the minister's view with respect to traditional territory and off-reserve aboriginal people? Presumably, these people may have status when they're living on reserve, but if they should move, if they are living off reserve, if they have families, if there's intermarriage and so on, then their status changes.

They still have legal status under the Indian Act, but there's a different status within the province.

The second thing is "mandated." How is that mandate being done? I know the minister will likely say that's up to the aboriginal people, but nevertheless, there has to be some kind of jurisdictional agreement as to what that mandate is and how it is going to bind agreements. You can't have mandates change and therefore binding agreements contested.

Thirdly, when you talk about constituents that implies membership. Where's the membership? How was that determined? These are important issues. I'd like the minister to give us some direct answers.

Hon. A. Petter: First, on the question of traditional territory, I said in second reading debate that we will not serve ourselves well if we look to this act to accomplish all purposes for all circumstances, even in relation to aboriginal peoples.

However, having said that, it's important to recognize that those aboriginal peoples who live off the land base but have an association with the traditional territory will be able to avail themselves of this process, just as Nisga'a citizens living in Prince Rupert or Vancouver have a stake in the Nisga'a negotiations right now and may become the beneficiaries under any agreement that's reached. That may be the case with other first nations citizens.

For one reason or another, some first nations citizens may not have such an association, and this process will not address issues relating to their rights, so we'll have to arrange other initiatives for them. But the association with traditional territory is an important one. It is a bit of a chicken-and-egg question, as the member acknowledged and as I stated earlier. I think the commission would provide some advice to us as to how to work out that chicken-and-egg problem to get to the negotiating table.

It does mean that first nations citizens throughout the province who have some association with their traditional territory will be able to participate through their first nations in negotiations. They are not being left out.

Secondly, on your question of mandate and constituents, that is a matter first nations must resolve for themselves. The task force report said: "...it will be important to the successful outcome of the negotiations that the people of the first nations have made their own choice. A clear decision, a strong mandate for the organization and its negotiators, and effective communications will enhance the prospects of reaching agreement, ratifying and implementing the treaty." They went on to recommend that the organization of first nations for negotiations is a decision to be made by each first nation.

Having said that, however, it's important to recognize that when we get to the negotiating table, and if we get to address issues such as self-government or the way in which resources are managed, governments may well have an interest on behalf of all the citizens of the province to insist that there be certain mechanisms for accountability. These mechanisms would ensure that those who benefit under the treaty are representative of the people who

[ Page 6484 ]

have a relationship with that traditional territory. Through the substantive negotiations, governments may seek greater assurances as to the way in which aboriginal structures will represent their citizens. So again we have a bit of a problem: how we get to the table versus what we do when we get to the table. I don't think there are any easy answers. The task force report was very clear as to the approach we should take towards entering into negotiations.

And getting to the table is an approach in which we respect first nations' rights to organize themselves and to create their mandates within their own organizational structures. That's very much the thrust of this legislation and agreement.

G. Wilson: I guess that is going to be a thorny issue, because as the minister pointed out, not all aboriginal people are members of the summit or even support the task force's recommendations. Some very vocal and well-organized groups have spoken out to the contrary on this. Presumably it comes back to what the member for Vancouver-Langara brought up -- and I think it was an excellent point and one that we have to look out for -- about what we do with groups that don't adhere to or subscribe to the summit and that don't anticipate this commission being able to look after their interests fairly.

Therefore they want to have their rights heard by provincial and federal authorities -- which, I would argue, have a fiduciary obligation and responsibility for it, particularly in the federal case -- but are told that the process that has been accepted by the three parties is this one. Where do they go? The minister says that presumably there is going to be some kind of hearing or process. But is that in fact the case?

In looking at this question of the mandate by its constituents, what mandate process are we looking at that will be accepted by government? If in fact you're talking about a minority vote because only 15, 20 or 30 percent show up in whatever electoral process there may be, does that mean that the 50, 60 or 70 percent of the population that didn't vote, who were disenfranchised or who weren't somehow involved, are no longer the responsibility of this government in terms of their rights and the protection of their interests? Is the government of the province absolving itself of responsibility for any aboriginal people who don't fall under the summit notion? What is the minister's view on this?

[3:30]

Hon. A. Petter: As I stated earlier, once one gets into negotiations, there will be negotiations around questions of enrolment. The federal government has policies on issues of enrolment. Certainly governments will have a very strong interest in ensuring that all first nations citizens who are within a first nation or who might be represented by a first nation are represented, so that there can be no suggestion of outstanding legal obligation.

Therefore one of the interests that will be brought to the negotiating table is an interest to ensure that the negotiations that take place are, from a first nations point of view, representative of all the first nations interests that ought to be represented.

Having said that, I daresay that some first nations representatives could critique our system -- and they have done so fairly well -- on the question of how representative it is of citizens. I think we must maintain a critical eye for others and also for ourselves. It's a delicate balance between respecting the rights of first nations to organize themselves on the one hand.... But I take the member's point very seriously.

Certainly the government has an interest -- not merely as a matter of principle but from a legal point of view -- in ensuring that the treaties it reaches speak to the rights of all the citizens of that first nation, lest any of those citizens might claim that they still have unresolved rights which haven't been addressed in that treaty.

Through those processes of negotiation and enrolment, I'm sure there will certainly be an effort by governments to ensure that all citizens of a particular first nation are represented in the treaty negotiation and ultimately in the ratification process.

G. Wilson: I'm delighted to hear that, and I'm sure all members of first nations will be delighted to hear that. Can the minister tell us where in this legislation there is any discussion of that protection? As a matter of fact, I would argue that if you read this legislation in conjunction with the Treaty Commission, it would suggest that if in fact there's a division within the ranks of an organization, within a first nation, they won't even get into the negotiations, because they won't be deemed ready.

Hon. A. Petter: Just to remind the member, this legislation sets up a process to oversee and advise governments and the First Nations Summit on the negotiations, to facilitate negotiations as a keeper of the process. I think it's a mistake to in any way view it as dealing with the substance of those negotiations. The substance of those negotiations will not be the responsibility of the Treaty Commission; it will be the responsibility of the parties to those negotiations, which will include the first nations concerned in those negotiations, plus the federal and provincial governments. That's why it's not addressed in the legislation.

G. Wilson: Let's try to get a little more serious here. I don't mean to suggest that the minister isn't being serious, but this commission has the power and the duty to allocate funds -- and we'll deal with that when we get to the

section -- that are provided to enable first nations to participate. This is the keeper of dollars that are financed by the provincial and federal governments. We have a fiduciary obligation and responsibility to the citizens who elect us, aboriginal and non-aboriginal. I was elected by.... As a matter of fact, I think I won every poll except for Sliammon, I believe it was, and I'm working on that one.

The situation I'm addressing here is that if the commission is to be effective in providing its advice to facilitate this kind of discussion -- and we all hope that it will be -- it's extremely important for us to know how the government is going to see its responsibility. Given that the bill says that this commission is not an

[ Page 6485 ]

agent of government, it's important for us to know how the minister and the government intend to approach an appeal -- if there is one -- under the definition of first nation on the question of traditional territory or mandate by constituents. Those are the two keys that are required in order for this first nation definition to apply to a particular group. How does one appeal if it is ruled that you have neither?

Hon. A. Petter: Again, I think one has to start from the situation as it is now and in other provinces, in which the federal government dispenses negotiating funds according to its own wishes. This process provides an independent body to make those assessments.

The member likes to engage in these arguments in which he imagines how much better it could be, with considerably more processing cost attached -- the best are the enemy of the good. The fact is, this process moves the decision about financing first nations from the more political environment of the federal government into the less political, independent environment of this commission, and that surely must be welcomed as a step forward.

In addition, the commission, in its assessment of readiness -- maybe we should defer this discussion until we get to some of its powers -- will have to assure itself that the first nation does indeed have a clear mandate from its citizens. If that first nation does not have a clear mandate, it will, I'm sure, play into the commission's determination as to whether the first nation is ready. It will then be up to the first nation to demonstrate that the mandate does indeed exist.

G. Wilson: Some aboriginal people who have had an opportunity to look at this bill have concerns over this definition. They want to know how the mandate -- and they're talking about mandate by constituencies -- is to be determined. There's a myriad of ways in which the mandate may be done. They're concerned that they may be snookered by this if they have fractional political entities within their own organization that forever limit or make impossible their opportunity to come forward in a united front. What happens with those groups?

If the minister says that it's up to them to sort it out and that the group will not be allowed to come forward until it does, will it hinder the speedy resolution of other negotiations? A band may be well organized and well along the way to having negotiated on the specific claims, the comprehensive claims may be moving forward and they're ready to come up with a final resolution to the question, but there's an overlapping jurisdictional issue with a neighbouring band that they can't deal with because the neighbouring band is not in a position to deal with it.

Therefore the commission is going to say: "I'm sorry. Until you can sort that out, you can't come forward." This is a recipe for inaction.

Hon. A. Petter: The member makes a good point when he talks about the difficulty of addressing overlapping claims. With respect to his first point, however, surely the member wouldn't suggest that we set up a system in which those first nations that do not have a clear mandate be given funds to commence negotiations. That seems to me to be the alternative to what we have here. I think this legislation creates a incentive to first nations to try to assure themselves -- and through themselves to assure the commission and federal and provincial governments -- that there is a clear mandate.

On the question of overlapping claims, it's true that there may be difficulties in the sense that some first nations who are more ready to negotiate have overlapping claims with some who are less ready to negotiate. However, I would argue that most first nations will want to be in a position to come before the commission, and will therefore want to address the issue of overlapping claims. In the case of first nations, I would point out that the commission has a responsibility to ensure that issues of overlaps have been identified and a process has at least been started to deal with those issues.

These are not easy questions. There are no easy answers, as the task force pointed out. I think we have taken a major step forward, and through this step forward, have given an incentive to first nations who currently have no incentive to resolve these issues of mandate and overlap which did not previously exist. That's not a prescription for paralysis; that's a prescription for moving forward. But it's not going to be easy.

G. Wilson: My last point on this is a question. Maybe I haven't been clear enough for the minister to understand exactly what I'm getting at. My question is: how do you determine the mandate? I would argue that the government opposite has no clear mandate. They only got 40 percent of the vote; 60 percent of the people of British Columbia didn't want them. There you are, making policy and laws on behalf of all of us, and there is not much we can do about it for a couple of years.

F. Garden: It's a democratic system.

G. Wilson: I hear: "It's a democratic system." That is quite correct. I'm glad that the member has finally woken and is now participating in this debate. It's good to see that he is awake. It is a democratic system, and what's more, it's recognized and accepted.

The problem I'm having here.... It isn't just my own view; these are views that have been expressed by aboriginal people, particularly some of the interior bands who are saying: "How do you determine the mandate?" This agreement requires a ratification process.

If you don't have a clear understanding of the legitimate jurisdiction and the authority of that jurisdiction to get the mandate, then how do you enter into an agreement that may have a ratification process -- say, through a referendum -- that tosses that thing out? How do you get a fixed, binding agreement if you have to have ratification after an agreement? This government has legal authority and is empowered -- and some of us would argue that it is unfortunate that it is -- to make agreements on behalf of the people of British Columbia. This says there has to be a mandated negotiation process; then there has to be a ratification

[ Page 6486 ]

process, which assumes that the power given to those mandated for negotiation is not clear enough that they can enter into those binding agreements without ratification.

What I'm arguing here is the question of first nations in the

definitions. Surely the minister needs to have a more specific and clearer definition with respect to the legal and political jurisdiction and the authority provided to that jurisdiction as they enter into negotiations. It isn't going to be the land claim, finally, that will be the real nut we have to try and crack in this province; it's going to be jurisdiction over the land. And I said that in second reading. It's the whole process of "self-government" that is going to be an issue. Who is mandated? What is their mandate? What is their legal authority? What is their legal right to enter into these agreements?

How is that binding? If they have to go to a ratification process, how can that ratification process alter if a mandate can be given to those who have either a simple majority or no majority? That is a very critically important question.

Hon. A. Petter: I'm not sure I can add a lot to what I've already said. The task force looked at this issue very carefully. It was their recommendation that first nations had to, at least initially, define for themselves their governmental structures. It is also true that we are seeking, through the Treaty Commission Act and the agreement, the advice of the Treaty Commission as to whether or not a first nation is ready to proceed. Part of that consideration is whether or not there is a clear mandate for that first nation to negotiate through certain designated officials or leaders on behalf of the citizens of that first nation. I'm not sure how else you do it.

I think the point about ratification simply proves that first nations have a very strong incentive to ensure that the structure they develop to demonstrate that they have a mandate is an effective structure, because it's going to be a structure that at the end of the process will survive a ratification vote, just as we must be assured that the mandate we as a government have is one that can survive debate and scrutiny in this House and enact legislation necessary to implement treaties. So I think that the two are parallel.

G. Wilson: The minister surely has to recognize that if the last budget had been put to a referendum vote, not only would the government of British Columbia have been tossed out on its ear, but the minister would have gone with it.

So let's be clear. You've got 40 or 41 percent of the vote, but you've got 50 seats -- 51 if you include the seat of the Speaker, which obviously is neutral. So it's 50 seats that you've got here. That's how you get legislation through the House. It's not because you've got the mandate of the majority of the people; it's because you've got the majority of seats in this Legislature. After the next election you won't have that; you'll be on this side, and we'll be on that side, and then you'll see a different change. However, I do digress.

Let me come back to this question. Under the question of this summit, it says it's the body established to represent the nations -- and I think the member from Langara, who is a minister, said that it's those who agree. Right? It says those who "agree to participate." As the minister correctly pointed out, the agreement can be revoked -- some are in, some are out -- and it can change. This is going to be very difficult if -- as we look at

section 3, when we get to it; and I know there are other members who want to debate it -- there's going to be some fluctuation.

[3:45]

Does the minister envisage that the summit membership is going to be regarded as a particular snapshot in time? Are you going to say that this is the summit; these are the agreements; these are now binding agreements; now we're going to move forward; if you're in you're in, if you're out you're out? If it isn't going to be that way, then presumably one's membership in the summit can be a bargaining chip in what's going to become a second set of negotiations as to who gets in and who gets out. I would argue that it's something that might be quite painful if we have to go through it.

Hon. A Petter: No, I don't envisage this freeze-in-time situation. This is a voluntary process that first nations can avail themselves of. The summit is identified in the act and in the agreement as being comprised of those first nations that choose to avail themselves of it. It is wholly voluntary. Those who do not wish to, at this time or at some future time, need not do so.

G. Wilson: Could I have the minister, then, give me a direct answer to the question: if a first nation decides not to be a participant in the summit, but has all of its negotiation requirements in order, and it is essentially, in the terms of this agreement, ready.... Let me use one. I know it's controversial in the eyes of some aboriginal people, but let's use the Sechelts. They are ready to negotiate. They are ready to have that concluded. In fact, they've been ready for a long time, and the government hasn't done anything to move those negotiations forward. There's absolutely nothing preventing the conclusion of that, save the will of the federal and provincial governments to make it so.

If they choose to not be part of the summit, what are their chances of getting that resolved? Or is this minister going to stand in the House when I question him in question period, which is one of the things that the minister said earlier in the debate was going to be a useful vehicle for discussion on this process -- which I really take exception to, having sat through a lot of question periods.... But nevertheless, what are their chances of getting an early resolution to what is clearly a settlement that could be obtained within weeks or months but no longer, if they choose not to go this route?

Surely the minister is saying that this is going to be the approved process, and that the whole notion of having a roster or list -- which is offensive to a number of aboriginal bands -- is going to come into play if in fact you're down the list somewhere, and you have to wait for one or two or four or five before you get moved to the top. I'd like the minister to specifically answer that and, if possible, talk about the Sechelts, because it's

[ Page 6487 ]

one that -- as I'm well aware, he's well aware and I think all of British Columbia is well aware -- is ready for a settlement that will serve the interests of those particular aboriginal people.

Hon. A. Petter: Very briefly, this is a voluntary process. It's not necessarily an exhaustive process, although it may be an exhausting process. Those first nations who choose to avail themselves of it, can. If the Sechelt band wishes, for example, to pursue negotiations through the Treaty Commission, they can do so without having to affiliate themselves formally with the summit group. They can come forward to the Treaty Commission and avail themselves of this process. If this process does not suit their needs, then there may be opportunities to look at other avenues that do so. I think that answers the member's questions.

G. Wilson: You say that there may be other opportunities. At whose discretion is that going to be? I'm not being critical in my commentary here; I'm asking. If this is the approved process, is the minister going to be reluctant or resistant to those groups out there? The minister is as well aware of those groups as I am because he's met with them; I know because they've told me about their meetings in a rather interesting discourse, actually. Is the minister saying that there is another avenue for resolution of the land question outside of this that will be accepted, approved and used by this government and the federal government?

Hon. A. Petter: There already is a process. The Nisga'a claim, for example, which is being negotiated, is ongoing and won't be affected by this process. The commission may choose to report on the progress of that negotiation, but it isn't subject to it. In the case of the Sechelt I can't give a definitive answer, but I would point out to the member that there are some arguments the Sechelt have put forward to say that they might wish to be considered outside of this process. In our most recent discussions they indicated to me that they weren't seeking a treaty, and this is a treaty process.

There have already been negotiations undertaken -- tripartite negotiations -- on the self-government aspects of a Sechelt agreement. In addition, there may well have been some indications by the federal government of trying to move on to land issues with the Sechelt. It is my understanding that the federal government has indicated that if cost-sharing negotiations are resolved between the federal and provincial governments, they might be prepared to look at a negotiating process with the Sechelt. So I'm not ruling it out at all.

But I also don't want to rule out the possibility the Sechelt may well look to this process as a very useful one that can serve their interests. It would be my hope that they would do so, but there are reasons why they might not and arguments as to why a different process might be appropriate.

K. Jones: I'd like to follow through on the fine work done by our member for Powell River-Sunshine Coast. I also have similar concerns about those words that are making up the definition of first nations. It's very critical to the whole process, because what you set in this will also be the basis for the agreements and the treaties; the same

definitions will carry through. I think it's very important that we be careful as to what we have put down here and that all of the people that are represented by our aboriginal peoples will be fairly and equitably included in the process. It's important that those people with status who don't wish to go through this process are also going to get their fair share of the final settlement, that they're not going to be left with the tail end after everything else is taken by those who are more advanced in this particular process.

It's important that those people who are in a non-status category are represented, and that those people who are M�tis also have their claims and interests looked after in this process. Could you clarify for us, hon. minister, how all of these people are going to be given a fair and equitable representation in this process the way it now stands? You have said basically that those who choose to can participate and those who choose not to can wait. I believe those were your previous words to our member for Powell River-Sunshine Coast.

Hon. A. Petter: I can't possibly, in the time available, go through the exhaustive analysis that the task force went through. I recommend to members who are interested in these issues that they read the excellent report done by the task force which was commissioned by the former minister who now sits in this House as Leader of the Third Party. Their discussions were well informed by representatives such as Allan Williams, the former Attorney General of this province.

It won't give you all the nuances of the task force, but the short answer is that the reason for setting up an independent commission such as the one being contemplated by this legislation, under a chair who will enjoy the confidence of both aboriginal and non-aboriginal British Columbians, is precisely to provide the confidence the member seeks. That's why this commission, and not this government, the federal government or the first nations, has been given the mandate to advise government on this process in accordance with the criteria set down in this legislation.

Because these are difficult questions, because there are no easy answers and because there will be problems along the way, the conclusion of the task force was that we needed an independent commission of highly credible individuals to oversee this process and advise government on how best to prioritize negotiations, dispense negotiating funds, assess the readiness of first nations, and assist in the resolution of disputes that will get first nations to the negotiating table. That's what this legislation does.

K. Jones: Does the minister feel confident, then, that the wording "mandated" really defines the participatory role that all people will have in making sure that they are given an equal opportunity to be heard and to have a fair apportionment in any ultimate settlement of this process, even those who may not have the funds for expensive legal advice or who for some individual reasons choose not to go through this process? The Sechelt have indicated that they are ready

[ Page 6488 ]

to move. There are others who are ready to move and don't need to go through this process. I don't see that you have actually clarified for us how these people are going to be properly represented in the process, through this definition.

Hon. A. Petter: For those first nations who choose to avail themselves of this process, the commission has been charged with the responsibility to advise whether they are ready to proceed, and that includes whether they are mandated. If they choose to avail themselves of that process, they are choosing to avail themselves of the commission. That's what this process is designed to achieve: it is to have an independent commission advise governments.

Other first nations may choose not to avail themselves of this process. I would hope that over time they would reconsider. There may be some who have reasons that distinguish themselves from those first nations who might wish to avail themselves of this process. For example, if one is seeking to negotiate an agreement that is not a treaty, one might argue that this isn't the process, given that it is to negotiate treaties.

But by and large, we are taking a first step. That step is the creation of a process. My belief is this process will serve the interests of the vast majority of first nations in the province. Time will tell whether that assessment is right. If it isn't right, we may have to contemplate other processes.

K. Jones: Could the minister give us a clear definition of what "mandated" means? "Mandated" isn't defined in this

interpretation. Could you tell us what you meant by "mandated" when you brought this forward?

Hon. A. Petter: That is precisely the advice that the Treaty Commission will be providing to us.

K. Jones: I don't think we really got an answer. The minister said that's precisely what the Treaty Commission is going to bring forward. Are you saying they are going to bring forward

definitions of the terms that are not defined in the act? Shouldn't the

definitions be clarified first, so that the Treaty Commission knows what it's doing?

Hon. A. Petter: I can give the same answer, or I can give a tautology to the member. The tautology is: "mandated" means that you have a mandate. Now whether or not you have a mandate is a question of judgment that the Treaty Commission is going to advise us on.

K. Jones: Could the minister give us some examples of what this type of mandating would entail, so that we who are trying to make a judgment on this have a better understanding of what this will be? Is it going to be a nodding of heads of three or four people who get together? Is it in an actual vote by hands, a secret ballot, or in what form? There are quite a large number of choices that I can think of. Is there going to be some clarification of this?

Hon. A. Petter: Yes, the commission will be looking for evidence that the first nation has a mandate.

[4:00]

K. Jones: I'm quite clear in my mind that that's exactly what they're going to be looking for, but what method will they use to know whether a mandate has been received?

Hon. A. Petter: That is up to the excellent judgment of this independent commission.

K. Jones: I'm afraid that puts a great onus on a body that is there at the pleasure of this government yet doesn't know the process by which it will be expected to make its decisions. That seems a very good example of how to leave things in a confused mess very shortly. How will you be able to actually measure whether you've achieved the mandating or the success of the commission if you don't know what it's supposed to accomplish?

Hon. A. Petter: We'll be looking to the advice of the commission as to whether or not a particular first nation has achieved the mandate required in order to judge them ready to proceed to negotiate under this agreement.

K. Jones: It seems we're not getting an answer on this subject because the government hasn't really thought out that part of the definition clearly enough to be able to come forward with an answer that would guide and assist these people who have the onerous job of trying to bring all of this together. Certainly without having a much clearer definition of "mandated" and "traditional territory" and "constituents" -- when the basic fundamentals are not understood by this government -- it's almost impossible for these people to try to bring forward a treaty.

I think this government has to take the responsibility. If the Treaty Commission is unable to resolve this, it's certainly going to fall back upon this government for failing to provide adequate instruction and clarification of direction. I think an example of this -- and I'd like to ask the minister to tell me whether he agrees with it -- is in the statement that this is an agreement "with the original owners of this great province." That's a quotation from a statement made on May 19 by the member for Alberni -- the government Whip -- speaking on second reading of this Treaty Commission Act.

It is found on page 6447 of Hansard, for the assistance of the minister if he wishes to look it up. It certainly brings into question whether the government really is defining it among its back bench or whether it is defining it in the act itself. Is the minister in full agreement with the statement made by the member for Alberni that this is an agreement with the original owners of this great province?

Hon. A. Petter: I'm not sure where the member is going, because he seems to be going off in a number of different and unrelated directions.

[ Page 6489 ]

On the question of mandate, if he would read the task force report he would find out that this is a very tricky issue. Particular first nations are organized differently. Each first nation must be respected in this process of negotiation. For that reason it was decided by the task force, and recommended to government, that first nations organize themselves. On the other hand, government has a responsibility to ensure that it is negotiating with those who speak on behalf of the first nation.

For that reason the commission was given the task, based on the recommendation of the task force, to assure itself -- and through itself to governments and the public -- that the particular structure is one in which the first nation or the negotiators for the first nation do indeed have a mandate.

I'm not sure if the member was in the House when I discussed this earlier, but once one gets into the treaty negotiation process, issues about enrolment and representation will inevitably come up and be discussed through that negotiation process. So there will be ample opportunity in the negotiating process to deal with some of those issues substantively.

As for the threshold question, it was precisely because of the difficulty of that issue -- the diversity of first nations, and the respect that must be shown to first nations, as we would expect to be shown to our forms of government -- that the commission as an independent body was agreed to be an appropriate instrument to advise all parties whether all parties, not just first nations, do indeed have a mandate to proceed to negotiations.

[M. Lord in the chair.]

K. Jones: I'd like to just follow up a little bit more in the area that the minister just brought up. Who is going to have the mandate to speak for the principals, and are the principals representing all of the interests that are going to be affected by this? How do the principals, as indicated, look after the interests of third parties: people who have direct property, investment or cultural interest in areas being discussed by these two governments and the first nations people who make up this summit?

Hon. A. Petter: These are issues that might be better addressed later on when we're talking about the actual powers of the commission. Perhaps if we can clear them all up now, we can then zip through all of that.

The task force recommended that it be the role of the provincial and federal governments to ensure that the interests of third parties were represented and respected throughout the negotiation process. As government, we have taken a number of initiatives to ensure that that is happening; I mentioned that in my second reading speech. Under the agreement you will find that the commission has been given the criteria for determining, as part of readiness, whether -- in the case of Canada and British Columbia respectively -- they have established mechanisms for consultation with non-aboriginal interests.

In determining the readiness of the province and Canada to proceed, the commission will have to assure itself -- and through itself, the public -- that Canada and British Columbia have in fact undertaken the necessary steps to represent those interests, as was recommended by the task force.

K. Jones: I'd just like to go back to the question I posed with regard to a statement made by the member for Alberni. The minister did not give us an answer to the question of whether he agreed with the statement that this was an agreement with the original owners of this great province.

Hon. A. Petter: This agreement is with the First Nations Summit.

K. Jones: I take it from that statement that the minister is saying he does not agree with the statement made by the government Whip, the member for Alberni.

Hon. A. Petter: No, that is not what I said. What I said was: if you ask who this agreement is with, it is with a particular organization, the First Nations Summit, which is charged with the responsibility of representing first nations that wish to associate themselves with this process.

K. Jones: It seems obvious that the minister doesn't wish to touch the question with regard to the statement made by the member for Alberni. I think it must be considered that it really puts the government in a very difficult position to have to have these negotiations going ahead on the basis that they've already committed to: that the ownership of the title of the province is in the hands of the people who are listed here as first nations.

Hon. A. Petter: I would love to engage in a philosophical debate with the member on the question of title and ownership, but it's simply not germane to the issue at hand.

V. Anderson: To follow up on just a few things that arise from what the minister has said, I was concerned earlier in the discussion when he referred to other people being able to be part of this. He said that at the end of the day, he hoped they might be a part of this. Later on that was qualified, and I now understand it to mean that at the beginning of the day, there are other processes available as well. I want to say that that's what I heard, and I trust that's what the minister meant.

I understood that the treaty agreement, the original agreement that we're talking about, was made by way of an order-in-council, I presume on behalf of the provincial government. When we are implying that changes could be made in the agreement, we're not implying that changes can be made by the negotiating committee per se; we're implying that those agreements have to come back to be ratified by an order-in-council of the government -- federal, provincial and summit. Perhaps we could get a clarification on that. The five members of the commission don't change the

[ Page 6490 ]

agreement; the agreement can only be changed by those who made the original agreement. Is that right?

Hon. A. Petter: On the first point, it's true that this process does allow the Nisga'a negotiations, which are already underway, to continue, and they don't have to go through this process. There may be others who can make a claim, for one reason or another, that they are also in process and ought to continue in some form of negotiation. There are also many negotiations that have gone on and will go on around the province on a variety of issues, which are not treaty issues, that might take place and will take place in any event. So the member is correct.

I also wish to reiterate that we view this process as being extremely useful and valuable. While it is voluntary and not exhaustive, as I said earlier, I believe that it can meet the needs of the vast majority of first nations. I would hope that first nations will look upon it in that light and avail themselves of it.

With respect to the latter point, you're absolutely correct. It is an agreement among three principals -- the federal and provincial governments and the First Nations Summit -- and it can only be changed by those principals, using the instruments they initially used to promulgate the agreement. In the case of the province, that would be a signature, subject to ratification by an order-in-council.

V. Anderson: Thank you for those explanations and clarifications. A few other things came up from the comments. At one point the minister implied that this doesn't bind the government in any way. In a sense we are bound, whether legally, morally or by expectations. There is a binding that does go forward, and it's the expectations which often bind us even more in the long run than either the legal or the moral ones. We have to recognize that what we say and how we say it are very important.

At the same time, he acknowledges that the purpose of the Treaty Commission is to facilitate negotiations. I think one of the concerns that has been raised is that any group that has the power to facilitate also has the power to get in the way and do strictly the opposite. And if the opposite is happening, then the concern it raises is: how do you get the Treaty Commission back on track if that should happen? I think that's part of the concern here. Who has the mandate to review the work of the Treaty Commission?

Who has the power to say to the Treaty Commission, "You're not functioning as you should, even though you were all specialists in the beginning," so that there is some review process in place? And who has the mandate to do that in undertaking the government's concerns and our concerns through the government?

Hon. A. Petter: I take the member's point about facilitation and the fact that certainly this act does represent a moral obligation or the fulfilment of a moral obligation to first nations to put a process in place to commence the negotiation of treaties and to resolve longstanding issues.

I also take the point that processes put in place to facilitate can sometimes hinder. For that reason, if the member refers to the agreement, he'll find in

section 12.0 a review provision that the principals shall review the effectiveness of the commission at least once every three years following its establishment, and that coincides with the term of the chair of the commission. So there is provision built within this for review, and the principals who created this commission could agree, upon that review, to modify it in ways that would assist it in operating better.

[4:15]

V. Anderson: I notice there the phrase, "at least once in every three years," so that they have, theoretically at least, the opportunity to review it in between if necessary.

The point has also been raised in the discussion that the legislation is to finally enact treaties. Two questions around that. Perhaps there should have been or could have been a definition of what a treaty is and what it is meant to encompass and to contain, because in the minister's comments he referred to items of concern that are outside of treaties. He also implied that there are certain items that are within treaties and certain items that are outside of treaties. But that definition is not within the act itself, although it seems to be important.

What areas of concern are eligible to be considered within the definition of treaties? That would be helpful in clarifying exactly what we're talking about in the discussion.

Hon. A. Petter: I think there is some disagreement as to what is or ought to be included within treaties. That is another matter that will ultimately have to be resolved through the negotiation process. I would point out that under the terms of the agreement the commission can, in this process, accommodate related agreements and other agreements that may fall strictly outside the definition. So there is flexibility there. But the issue of whether self-government agreements should be incorporated within treaties or outside of treaties is a controversial one and may be the subject of negotiations.

So I can't provide you with a categorical definition of treaties at this stage, other than to say that the function of a treaty will be to resolve these longstanding issues of rights in a way that promotes certainty, to respect rights that currently are not addressed in any comprehensive way and to lead to a resolution of these longstanding issues.

V. Anderson: Finally on this section, as far as I'm concerned, if I understand rightly, the process of the commission is to enable the different parties to come together. Then, with all the principals in agreement, they would come to a definition in this particular treaty that they're working on. When that agreement is reached by all the principals -- federal, provincial and summit representatives -- then that treaty agreement will come back to the legislatures.... You mentioned this earlier, and I wanted clarification. When a treaty is agreed upon, does it come back to the summit? In that case, it would not be the summit; the group itself, with

[ Page 6491 ]

the federal and provincial governments, would be making the decision. So in that case, the decision would be made by the treaty group, with the federal and provincial governments agreeing through their respective legislatures.

Hon. A. Petter: Yes, that is correct.

G. Wilson: I just have a couple of quick clarification questions. Depending on the minister's answer, they may be quick.

I want to come back to this mandate, because it is really important. To whom can people who feel disenfranchised appeal directly to have their interests and their concerns heard if there is disagreement among members of an aboriginal group as to provision of an adequate mandate, but the treaty commission says that it is satisfied that the group negotiating is mandated?

Hon. A. Petter: I would assume they would have an appeal process of whatever kind their own governmental structure afforded. But beyond that, issues on the relationship of the negotiations to those people will be the subject of negotiations as well. Like any citizens, they may wish to make those concerns public. But, as I say, the federal government and the province have an interest in ensuring that those who might feel disenfranchised, do not, so we can be assured that once treaties are reached, there is certainty and stability and no citizens are left who might have any claim that their rights were not embraced within the terms of the treaty.

G. Wilson: The minister answered that as I anticipated he would. First of all, I think it's a little bit specious to suggest that if a group has taken power or authority and is negotiating on behalf of a substantial minority, or even a majority...it's unlikely that those who control the power base are going to hear an appeal -- in an arguably fair manner -- from people to whom they've just denied power. I think the minister would recognize that going through a somewhat corrupted system is not the way to go.

Insofar as this commission is there to simply facilitate.... That's what it says, and I would imagine we're going to pass the "Purpose" one with only an hour and a half of debate. The government of British Columbia, the minister responsible and the elected members of this assembly presumably still have powers and authority over any action that this commission may take.

My question -- a crucially important one -- to the minister is this: if the commission has argued that it's satisfied a group is empowered and mandated to enter into negotiation, but the minister or the government disagrees, can the minister then withhold the funding made available to the commission for negotiation? Can it refuse to enter into negotiation if the commission says that it should? To what authority... Does the government have authority, given that this is not an agent of any of the principals, to step out of that particular process and say: "In this instance, we will not participate"? Or is it bound by the recommendations that the commission has put forward?

Hon. A. Petter: Let me make a very quick general point, and then I'll try to address the more specific concerns. I don't think that we would stand in this Legislature for an independent commission passing judgment over whether a duly elected provincial government was mandated to represent the interests of the citizens of British Columbia. Similarly, there must be sensitivity shown to first nations and their ability to make these decisions for themselves. Having said that, the commission has been given this role of determining whether a mandate exists.

It must be exercised sensitively with respect to all three parties, not just the first nations. Also, I would urge that we be sensitive in our discussion about that. I think it's a tremendous advancement over the current situation in which these judgments are made by the federal government alone.

With respect to the more specific questions about funding and negotiation, the commission has been given the authority to dispense negotiating funds according to its best judgment, based on these criteria. The decision as to whether a government chooses to negotiate is ultimately left with the government. If the government does not follow the advice of the commission, that may still be influential upon it, in the same way a censure from the ombudsman might be influential upon it; but the government is not bound by that advice.

G. Wilson: My final comment on this

section goes back to the first statement that the minister made. That was a mouthful from this minister, and I hope people will review Hansard and read it with great care. I recognize there is an absolute need for sensitivity on this question -- and there is, by all members, without doubt. The minister is saying that this commission would no more stand and pass judgment on a duly elected government of British Columbia, which its authority, its jurisdiction and its right to govern established under the Constitution Act of Canada....

Therefore, by implication, I am hearing that this commission should not question a duly elected government of a "first nation," if indeed it is deemed to be mandated by its "constituents" -- and that's in this act. If that is what the minister intended -- and I am trying to be sensitive -- that is in fact an acknowledgment that in this process we are already within jurisdictional questions and negotiating government to government.

That brings us back to an agreement that was not ratified in the Constitution Act of Canada last fall, with respect to self-government propositions which have not been negotiated and are not yet a formal part of any constitutional agreement with the federal or provincial governments or the peoples of the first nations.

The minister might want to review what he said -- or clarify what he said -- because it is clear to me that there are aboriginal people in this province who have sincere concerns about what is taking place here with respect to their long-term interests. This government is mandated as much to look after their interests as it is to look after the interests of others -- aboriginal and

[ Page 6492 ]

non-aboriginal alike. I would hope -- and it comes back to what I asked earlier on -- that this minister is not going to abrogate responsibility in this process and will make sure that fairness and justice prevail with respect to recommendations that may come out as this commission tries to facilitate this process.

It is true that we need to be sensitive, but we also have to recognize that there is going to be a very lengthy and difficult discussion about jurisdiction -- and I can't emphasize it enough. For the record, I hope it is clear now that it is the jurisdictional questions on authority to pass laws and to have rights over land that are going to be the thorniest issues in negotiation. It is already seen with respect to the implementation of an aboriginal fisheries strategy, which is done by federal and provincial governments. So I would come back to that business of mandate, because that is a very important issue under the definition of first nations and the negotiation process.

Hon. A. Petter: Just to correct the record, the aboriginal fisheries strategy was not negotiated by the provincial government, but by the federal government and first nations.

On the earlier question, I would -- and no doubt will have an opportunity to do so during estimates debate -- love to engage in a philosophical discussion with the member to clarify all these points. I simply go back to the point that it's necessary to show sensitivity and respect. In order to do that, I think it's helpful to put oneself in other people's shoes.

I agree with the member that the government has a responsibility to all citizens. However, I also agree with the task force's recommendation No. 7 -- made by some very eminent individuals, such as a former Attorney General of this province, Allan Williams -- which says: "The organization of first nations for the negotiations is a decision to be made by each first nation." That respect must be shown. I don't think that's the ringing declaration the member would have, but it's a sign of respect. First nations are governmental structures.

They must be respected as such, and we must balance that respect against a concern to ensure that those who come to the negotiating table can represent the interests of the citizens of that first nation. It's that very delicate balance that the Treaty Commission will advise us on in judging the readiness of first nations in accordance with the question of whether or not the nation indeed does have a mandate to negotiate.

Section 1 approved.

section 2.

V. Anderson: I just want to seek one clarification. It probably goes without saying: "The purpose of this act is to establish the British Columbia Treaty Commission, as undertaken in the agreement." So in effect we're saying that whatever is in the agreement is the purpose of this act; over and above just establishing the commission, that's the purpose of the act. But we're also saying -- or are we? -- that everything in the agreement is to be established as a result of this as well. There's a double meaning that could be taken from the way that's said, and I'm trying to clarify which meaning is really meant.

Hon. A. Petter: The language in the clause is there to suggest the relationship between the agreement and the legislation, but it does not give the agreement the status of law. The legislation has the status of law; the legislation is there to give effect to the agreement. The agreement does not, however, by virtue of that, become an extension of the legislation.

[4:30]

Section 2 approved.

section 3.

J. Weisgerber: First of all, I am pleased to join in the committee debate on Bill 22.

I want to start by saying that I have a great deal of respect and admiration for, and a great deal of confidence in, the members of the task force who developed the recommendations that ultimately led to the agreement which we are now attempting to put into law or to endorse on behalf of the province. I think it is also fair to recognize that these people -- including, as the minister has indicated, a former Attorney General -- spent a lot of time looking at the

definitions and determining the kinds of things that we're talking about today, trying to seek clarification and to make sure that the wording was as appropriate as it could be. So I've not joined in the debate around the

definitions, because I felt that, given the confidence I have in the people who developed them, probably every question I could think of would have been considered in a great deal more detail than this particular forum allows us to do.

Section 3 sets out, among other things, the membership of the commission. I'm interested in the provincial government's -- the NDP government's, the minister's government's -- endorsement of the notion that the membership of the committee should be one from the province, one from the federal government and two representing the summit. I'm sure the minister, his government and his cabinet must have had a great deal of trouble justifying it, as I did when I looked at that recommendation.

It must have been difficult to say that if we are going to sit down, as the minister has said -- and I want to make sure these are the minister's words -- on a nation-to-nation basis.... Surely each would come equally represented. I'm wondering how the minister was able to rationalize the decision to accept, on behalf of the government and the people of British Columbia, that particular recommendation of the task force.

Hon. A. Petter: I very much appreciate the introductory comments of the member, because I share the same confidence that he does in the task force. I also agree that the question of composition of the commission is a tricky one. From a first nations perspective, there is a careful balance that has to be struck. Many first nations would say the negotiation is between first nations and non-aboriginal governments.

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They see it as a binary process in which the provincial and federal governments both happen to be involved.

I would say that the choice of the chair was obviously crucial in this composition. The notion that the chair must be there to represent and have the confidence of all British Columbians is one element. But the most crucial element that helped resolve my mind and the government's mind on this arises later in the bill in

section 14, particularly 14(2), which we can discuss. That provides that the decisions of the commission must be by agreement of at least one commissioner appointed by each of the three principals. That consensus-based approach effectively assures the province that no decision will be made unless the province's views are listened to and respected. It makes the question of act