2007 Legislative Session: Third Session, 38th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, OCTOBER 30, 2007

Morning Sitting

Volume 23, Number 8

CONTENTS

Routine Proceedings

Page

Committee of the Whole House

Tsawwassen First Nation Final Agreement

Act (Bill 40) (continued)

S. Fraser

Hon. M. de

Jong

J. Horgan

G. Gentner

S. Simpson

M. Sather

D. MacKay

M. Karagianis

[ Page 8921 ]

TUESDAY, OCTOBER 30, 2007

The House met at 10:04 a.m.

[Mr. Speaker in the chair.]

Prayers.

Orders of the Day

Hon. M. de Jong: I call continued committee stage debate on

Bill 40.

[1005]

Committee of the Whole House

TSAWWASSEN FIRST NATION

FINAL AGREEMENT ACT

(continued)

The House in Committee of the Whole (Section

B) on Bill 40; S.

Hammell in the chair.

The committee met at 10:07 a.m.

section 3 (continued) .

S. Fraser: I just want to lay out for the record some

clarification. We seem to be in a fluid situation in this discussion. My

understanding is that we're going to try to cover the remainder of what's in

chapter 4 and then move through things, but that we're going to try to come back

to the ALR issue. Is that the understanding we have with the minister?

Hon. M. de Jong: Yes, that is my understanding. The issue

that we began dealing with yesterday is referred to specifically in

section 9 of

the bill. So as we move through the

schedule and then through sections 4, 5, 6,

7, 8….

Most of what I heard in the debate yesterday is more properly

covered in

section 9 of the bill, which is the instrument by which that decision

around the ALR lands is made.

S. Fraser: Thanks to the minister for that. I just wanted

to make sure it was clear to all members on all sides here that we will have an

opportunity to deal with the agricultural land reserve issues at

section 9.

Originally the idea was to deal with it in

section 3, as that is

an all-encompassing section, but I think this will be more efficient. So I'll

just ask a quick question.

I know there was a lot of discussion on subsurface rights, and one

question came to mind sitting here listening to that discussion. The wording in

Tsawwassen on the subsurface rights issues — is it consistent? I've read it in

both other treaties, the coming Maa-nulth treaty and the previous Nisga'a

treaty. They're not identical here.

Is there consistency between the three treaties on subsurface

rights? If not, can the subtle differences be explained to me, please?

[1010]

Hon. M. de Jong: In the Tsawwassen case, as the member has

pointed out, the subsurface rights beneath the treaty settlement lands are

transferred. That is the case in all three treaties.

I am alerted to the possibility that — I'm trying to think back to

the Nisga'a — there may have been some privately held subsurface rights that

were not part of that. But where there were Crown-held subsurface rights on the

treaty settlement lands, in all three cases they were transferred to the

settling first nation.

J. Horgan: It's a pleasure to enter the debate at committee

stage on the Tsawwassen treaty. I want to also pursue the issue of subsurface

rights for a moment with the minister.

In questioning from the member for, I believe, Peace River South

last evening…. I haven't had an opportunity to review the Blues , so I'm

going by memory, and the minister may well correct me on this. A question was

posed with respect to whether an evaluation or an appraisal was done of the

potential value of subsurface rights on the lands in question. I'm wondering if

the minister, over the course of the evening, has had an opportunity to

determine if any evaluation or appraisal was done on the value of those

subsurface rights.

Hon. M. de Jong: Thank you to the member for the question.

He's correct. That question was posed yesterday. I just wanted to get as much

information as I could for the member.

On the almost 400 hectares of Crown land — I think it's about 375

hectares of Crown land that are being transferred — there was no knowledge of

any mineral values, so there's no anticipated value there.

The second component, I suppose, of undersurface rights…. I've

asked whether there was any seismic testing done to determine oil or natural gas

values on that 375 hectares. There was none done, so it's not really possible to

value what, if any, value would exist in respect of energy or oil and gas.

J. Horgan: I thank the minister for that second answer to

the second question put to him on the issue.

The other point that concerns me is

section 24. I'll read a

portion of that into the record: "Nothing in this Agreement confers jurisdiction

on Tsawwassen Government to make laws in relation to the exploration for,

development, production, use or application of nuclear energy or atomic energy

or the production, possession or use, for any purpose, of nuclear substances,

prescribed substances, prescribed equipment or prescribed information."

[1015]

That strikes me as an odd clause. If we haven't done an evaluation

or an appraisal of the minerals or other elements in and around the 400-odd

hectares that are being transferred, why would we focus on uranium, I'm

assuming, in this

section — if it is in fact uranium that we're trying to get

at? Or is it concern that North Korea is going to come calling to another level

of government?

[ Page 8922 ]

Hon. M. de Jong: The

section is there to ensure and

preserve absolute federal jurisdiction over the development of any atomic energy

of any sort. It is less, I think, about exploration than the development, and

preserving absolute federal regulatory authority over the development of atomic

energy.

J. Horgan: Why, then, was it put in the subsurface

resources management and administration section? That leads me and, I think,

others who would read the document to conclude that there's some prospect of

uranium in this area and that, in an abundance level of caution, the senior

level of government has requested this be put in this section. Is it because

there was no more appropriate place for it to rest?

Hon. M. de Jong: I'm advised that the member's explanation

is probably the likely one. There wasn't a more appropriate place anywhere in

the agreement to place it, and that's why it's here. We're not aware of any

evidence or likelihood or possibility or interest in or presence of uranium or

similar resources in this area. It's there at the insistence of the federal

government.

J. Horgan: I thank the minister for that clarification.

With respect to gravel extraction, in this

section there's no

explicit reference to gravel. But the member will know that in his constituency,

certainly from the valley, gravel is a hot-button issue. What role or

relationship will the Tsawwassen government have with respect to gravel, and

will it have an impact on the ability of the Minister of Energy, Mines to permit

that activity?

Hon. M. de Jong: If there were gravel located on the

subsurface treaty settlement lands, the jurisdiction to regulate its development

or removal would rest entirely with the Tsawwassen First Nation and their

government. We are not aware of any gravel reserves, but if they existed beneath

the treaty settlement lands, jurisdiction would rest with the Tsawwassen.

J. Horgan: So the lands referred to as the bluffs, any

beachfront that would have sand which would be of some value…. If it was so

determined by the Tsawwassen people that they would put that sand or gravel

found at the bluffs for sale, that would not be regulated or controlled by the

province. It would be exclusively controlled by the Tsawwassen First Nation?

[1020]

Hon. M. de Jong: Two parts to the answer. Below the

high-water mark, I am reminded, the jurisdiction is provincial, not with the

Tsawwassen.

Secondly, insofar as the applicable environmental regulations,

under the terms of this treaty, where there is any kind of conflict, provincial

regulations would prevail. Those are, I think, the two parts of the answer that

I wanted to convey.

J. Horgan: We've heard from the minister this morning that

there was no appraisal or valuation done of potential mineral or subsurface

values. We also heard yesterday a question from the member for Nelson-Creston

with respect to an appraisal or an evaluation of the lands that were transferred

— whether it's B.C. Assessment's figure on the value of those lands.

I'm wondering. There seems to be a disturbing trend. Certainly in

my community in Jordan River, the government appears to have given a private

company access to lands that were previously held within a public tree farm

licence without any appraisal of the value of those lands.

Is it going to be a trend, as we go through this treaty and other

treaties, that the government is not going to have a dollar figure to ascribe in

net present value to lands or benefits that are transferred to another level of

government?

Hon. M. de Jong: What I do want to try and convey to the

member and all members is that we very much regard these negotiations and final

agreements as attempts to present a package. The package is comprised of various

components, land being one of them. There are fiscal payments from the federal

government. There are fish. In many cases there are timber resources.

I think the member knows from his contact with first nations that

one of the things we are cautious about and trying to avoid is the notion of

valuations on a per-capita basis. The member will know that first nations have

reacted very negatively to that and to the suggestion that, as a result of it,

unique local circumstances aren't taken into account.

There is, I suppose one could argue, that degree of imprecision

associated. But we do very much regard the final agreement as an overall package

and lay it before the House, as the Tsawwassen First Nation did before their

people, and say, "Here it is," and recommend it as being a reasonable

settlement.

G. Gentner: I want to make a preface here so that we

understand some of the protocol that the two sides have somewhat agreed to —

relative, of course, to the ALR discussion that maybe will be discussed,

hopefully in

section 9. However, under

chapter 4 of the treaty….

Where I'm going with this, hon. Chair, is some discussion on the

specified lands, which are in the ALR, but it's not about removal. It's about

some procedures which have occurred under specified lands and other lands —

lands that could be added to the Tsawwassen First Nation.

There has been a significant challenge by the Corporation of Delta

regarding the approach for adding the lands post-treaty. It's somewhat

inconsistent with many local governments and, of course, the lower mainland

treaty advisory committee. Even the UBCM had much consternation and difficulty

with where the treaty has gone relative to this…. It's very much a significant

parcel of land on the Sand Heads.

What is particularly troubling is that the Corporation of Delta

has felt that it's been treated differently than elsewhere in British Columbia,

without the municipal consent as a condition for removal of lands within

municipal boundaries post-treaty.

[ Page 8923 ]

Would the minister like to comment?

[1025]

Hon. M. de Jong: I wonder if, for the sake of precision,

the member could indicate the specific

section or sections that he is referring

to so that I know I am answering in an equally precise manner.

G. Gentner: I'm referring mainly to

chapter 4, "Addition to

or removal from Tsawwassen lands," which discusses, I believe, the specified

lands. There's also discussion on other Tsawwassen lands, which is more to do

with the parcels of lands up by the Fraser River and of course the Beach Grove

and Boundary Bay lands. At this time I want to look at specified lands — namely,

that known by many as Brunswick Point.

Hon. M. de Jong: I wonder if, in fleshing this through, I

can ask the member or point out to the member that there are at least three

different scenarios that arise here. There are certainly lands that, pursuant to

this final agreement, would at effective date become part of the treaty

settlement lands. There are other lands for which the Tsawwassen First Nation

has an option that they can exercise.

Around that, there's significance associated with 50 years because

in the first 50 years, if they exercise that option, the lands most certainly

can become part of the treaty settlement lands and attract the jurisdiction that

is part and parcel of that. But following that 50-year period, there is consent

required certainly from the corporation of the city of Delta.

I think I need to get a better sense from the member. Is it all of

that or a particular component of it that causes him concern and that he wants

to explore in this discussion?

G. Gentner: It's all of it. It's the uncertainty. It's a

50-year period where there will be uncertainty whether or not the TFN is going

to move on its option, and there's a whole host of questions about what happens

in the interim.

My question was: what type of consultation did the process endure

with the Corporation of Delta on the potential removal of this land? I'd just

like to know on record if the minister feels secure and good about the process

that was in place and the consultation with the municipality which is

potentially going to lose this land.

[1030]

Hon. M. de Jong: I think the short answer to the member is

yes, I am. I am satisfied that extraordinary efforts were made and that there

was a very strong level of engagement. In making that statement I refer to over

50 meetings that took place with the LMTAC, the Corporation of Delta, GVRD and

third parties.

I also note — optimistically and with a degree of pleasure — that

whilst the Corporation of Delta, the district of Delta, was very specific in

some of the concerns it expressed in the lead-up to the tabling of the

legislation we're debating, since the conclusion and ratification by the

Tsawwassen First Nation of the final agreement, council has been very

supportive.

A number of service agreements have been negotiated or are in the

process of negotiating. I know that Chief Kim Baird and the Tsawwassen First

Nation were thrilled that Mayor Jackson and the entire council were here on the

day the legislation was tabled, extending best wishes and congratulations and

really beginning a new era and a new relationship of their own between Delta and

the Tsawwassen First Nation.

I think that bodes well, because at the end of the day the

ultimate success of this final agreement will be secured on the ground as

between neighbours — between the neighbouring communities that Tsawwassen First

Nation and Delta represent.

G. Gentner: On the local government side. I suppose we can

canvass that another time under intergovernmental relations. It's probably more

appropriate there.

Regarding the 50 or so meetings, I understand most of them were

probably with the technical committee, sort of the after-the-fact view that the

province wasn't going to move. For the record, the municipality's position was

very clear in the pre- and post-treaty process: "During negotiations where first

nations acquire Crown lands or wish to purchase fee simple land within local

government boundaries…."

This is what significantly establishes this treaty somewhat

different than the previous, the Nisga'a. It's referred to as an urban treaty

for a reason. Just for the record: "Within local government boundaries, those

lands shall remain in fee simple and remain subject to local government

jurisdiction and taxation unless otherwise agreed to by the local government

through a community consultative process."

The Corporation of Delta, of course, has been on record for a

number of years that it doesn't believe there was a consulting process in place.

Moving along, my question is to the minister. There are two different approaches

that have happened before on other lands. Can he explain what the difference is

between the traditional approach versus the specified lands approach?

[1035]

Hon. M. de Jong: I think what the member was driving at, or

I hope what he was driving at, is the difference between a land transfer that

takes place on an effective date and specific parcels of land that are available

for transfer for a specified period of time and can become part of the treaty

settlement land package and jurisdiction.

I'm thinking back to the discussion we had yesterday, where there

was great concern expressed around the possibility of lands being expropriated

for the purpose of settling first nations land claims and signing treaties. In

fact, the regime we're talking about here avoids that by creating an option that

can only be exercised on the basis of a willing buyer and a willing seller. It

seems to me that is a preferable circumstance and one that I am supportive of.

The actual amounts here, I can tell the member, are the product of

the negotiation. It won't surprise him to

[ Page 8924 ]

know that the Tsawwassen First Nation negotiated passionately and vigorously

for as large a land package as possible. That, as I say, will come as no

surprise.

The last point I want to make at this juncture with respect to the

relationship between Delta and the Tsawwassen First Nation is that there has

already been tangible evidence of a blossoming relationship, notwithstanding

some of the tensions that may have existed during the course of the

negotiations.

They have settled and signed off on a comprehensive master

agreement. I am reminded that they are working on a comprehensive master

agreement and have not signed off on it yet. But there is already evidence of

the importance the two parties place in establishing a firm working

relationship. I think that bodes well for the future.

G. Gentner: I still don't understand why there's no attempt

to go through the traditional approach rather than the specified lands process.

Other treaties in the province do not specify an area, but municipal consent is

required.

[1040]

Is it true that perhaps this treaty was the catalyst for the

acquisition, or potential acquisition, of the Brunswick lands? Was it based on

the view that through the specified lands approach, as opposed to the

traditional lands approach, the negotiators — or in this case also the province

— didn't have to consent with the host municipality?

Hon. M. de Jong: I'm a bit interested in the member's

characterization of an approach as being traditional. This is, after all, the

first treaty to emerge from the B.C. Treaty Commission process. I can only

assume that the member is harkening back to the only other experience the

province has had with a final agreement in the modern era, and that is Nisga'a.

Of course, the circumstances there, given the geography and availability of

Crown land, were very different.

Both the Lheidli T'enneh treaty and the Maa-nulth treaties include

elements, to varying degrees, of a specified lands approach. So I suppose I

could argue that that is more traditional or more appropriate to attract the

label "traditional" than what the member has suggested.

I want to further emphasize to the committee the fact that

following the expiration of the 50-year period, the conventional consents that

the member has referred to are required. I take some comfort from that fact.

G. Gentner: Well, it's somewhat heartening to hear that the

minister has admitted that there is a difference between the previous treaty

approach and today's treaty approach — the modern era, so to speak — and that

there's somewhat of a need for some extensive discussion on this specific treaty

because it is dealing with municipal government.

The view was that the previous treaty, the Nisga'a, was a template

that was going to be used over and over again. If the template had been used, I

suppose the language relative to using a traditional approach would have been

incorporated throughout the treaty process, and local government would have been

at the table, particularly with this parcel of land, the Brunswick lands.

I have to know, since we're on the specified lands…. There is a

need to provide, for example, dike maintenance over the 50 years. Whose

responsibility will that be? Will it be the province? Will it be the TFN? Will

it be the Corporation of Delta?

[1045]

Hon. M. de Jong: The issue of diking is dealt with

specifically in

chapter 7.

I should say I was interested and somewhat fascinated to hear the

member's application of the term "template." If he is not aware, he will be soon

that first nations expend great energy articulating the notion that governments

need to be responsive to the unique circumstances that exist across the

province.

So the member may take the view that negotiating treaties is

simply a matter of applying a template that was designed in the 1990s, but I can

assure him that first nations take a significantly different view. But they will

be interested to know his view on that matter.

G. Gentner: I have something to quote here:

"It is a template; common sense dictates that it would be a

template…The fact of the matter is that we all know it's a template, because no

aboriginal group that comes after is going to accept a model that would presume

to grant them less jurisdictional power than that which is included in this

document. They won't, and no one would expect them to. It is surely a template

and needs to be addressed, discussed and analyzed from that point of view."

That is quoting the hon. member when he was in the opposition — a

discussion relative to a former treaty. So again, it's heartening to hear that

the minister has shifted his view that not one glove fits all. Indeed, this is

not a template, and therefore, this is a very different treaty.

On the concerns of the Brunswick Point lands, I want to talk about

future impacts. The process as outlined does not provide an opportunity to

assess the municipal impacts on a case-by-case basis for the 50 years following

the effective date. Will it impact the ability of local government to address

its adjacent impacts on the municipality?

Hon. M. de Jong: I think, Madam Chair, that exactly the

opposite is happening. I think we saw that by virtue of the presence of the

mayor and the entire council, who have said: "Look, we expressed our views. Some

of our submissions were taken account of; some weren't, to the extent that we

would like. But you know what? We're excited about the opportunity to develop a

new relationship with our neighbouring community, a new community, following the

implementation and effective date on this treaty. That's why we're negotiating a

master agreement. That's why we've already negotiated various service

agreements."

[ Page 8925 ]

I think the relationship is proving itself already to be healthy,

based around, in large measure, the certainty that accrues from the finalization

and ratification of this deal. The member is very pessimistic about the future

prospects. I actually am very optimistic.

G. Gentner: The Brunswick lands are to stay in the ALR over

the 50 years, and when, of course, the TFN move towards their option, it is

anticipated it will remain in the agricultural land reserve. But my concern here

is: what type of zoning is anticipated on those lands, if or when the TFN bring

them forward into their land base?

Hon. M. de Jong: To the member: he has correctly identified

the fact that these lands of which we are speaking, these particular specified

lands, remain in the ALR and, therefore, subject to the uses specified within

the ALR, which is a rather direct form of zoning. The Tsawwassen First Nation,

if they acquired ownership, would, of course, have the same option that any

other landowner has of making application to remove them, but that would be

subject to the same considerations as any other application to remove land from

the ALR.

[1050]

G. Gentner: I'd like to know what the minister's position

is on a loss of taxes in this area to the Corporation of Delta. Will there be

any compensation relative to that lost property tax base?

Hon. M. de Jong: The member knows, because he has posed the

question in the past — but he has posed it again during the course of this

debate — that there is no compensation payable, although Delta has already begun

to realize some additional revenues built around the service agreements that are

being negotiated with the Tsawwassen. But the type of compensation that the

member refers to is not something that is being considered or has been

considered.

G. Gentner: We'll pursue this discussion under

intergovernmental affairs, because it is one of the reasons why local

governments — in this case, Delta, the GVRD, the UBCM — have very grave concerns

about ripping their land apart, albeit it may be for a well-meaning intention.

But we're talking about budgets that are based on property taxes, and it has

great impacts on municipal governments. Again, it is why the municipality of

Delta has major, major concerns.

Now, relative to the irrigation and the water levels of the

Brunswick Point lands, what incentive does Delta have to maintain the water

levels if, chances are, it is no longer going to be in this jurisdiction? What

guarantee does the province have from the TFN, upon taking these lands, that the

irrigation levels will be kept in order to maintain its agricultural integrity?

Hon. M. de Jong: The important matters that the member has

referred to are probably best raised when we talk about access. He's already

raised the diking issue, and I think what he is referring to now relates to

clearing of ditches and irrigation corridors. We're probably better off

confirming the details of that when we get to the access chapter.

G. Gentner: A quick discussion on overlap of jurisdictions

or claims. We know that the Musqueam First Nation, the Katzie, have included the

Brunswick Point lands within their traditional territory. We know that the

Musqueam, just down the street, already have some reserve lands. We know that

the Sand Heads have been fished, and there were settlements there for some time

by various Salish groups.

The questions I have…. The lands are going to be sold to the TFN,

subject to application to B.C. and Canada. Will they be subject to further

scrutiny and appeals by other first nations with legitimate claims to those

lands?

[1055]

The point is that we're talking about Brunswick Point — the apex

of the mouth of the river of the most significant fishing ground in the

province. What is the ministry's position when those claims come forward?

Hon. M. de Jong: I'm going to refer the member to the

discussion we had previously on

chapter 2. I'm a bit reluctant to go back over

ground that we have already canvassed.

We did talk about the processes that are set out in the treaty,

the non-derogation provisions and the general provisions of the treaty that

exist to deal with situations where challenges are made and substantiated to the

extent that they have an impact on the treaty. So a mechanism exists by which

the parties can address that.

Suffice to say, the parties believe, by virtue of the signing off

or tabling and ratification of this agreement, that we are proceeding on sound

legal footing, but there is a mechanism by which the parties, all of them, can

respond in the type of scenario that the member has presented.

G. Gentner: I'm still perplexed. I'm a little worried here

still. It's the uncertainty regarding this land over the next 50 years.

There's no incentive for the Corporation of Delta to maintain its

ditching, its irrigation. There's no need to maintain roads if you know that

that jurisdiction is going to move into another area. We know, accordingly, that

there's no need to maintain the agricultural integrity of the land if there are

no incentives being put in place here.

What assurances, other than that it's going to remain in the ALR…?

Of course, land can stay in the ALR and not be farmed and become derelict land,

so to speak. What assurances do we have from this government that the Brunswick

Point lands will remain in pristine agricultural tradition and also be

maintained — all services — through this period of uncertainty?

Hon. M. de Jong: Well, I appreciate the member's question

and his interest, but I'm a bit perplexed by the premise. The Corporation of

Delta has the same interests today that it had yesterday and will have tomorrow.

[1100]

[ Page 8926 ]

The specified lands we are talking about are owned by people. They

may or may not be sold to a new owner. A set of rules exists if that happens

within the next 50 years, and a set of rules exists if that happens after the

expiration of 50 years. The parties are actually quite responsibly engaging in

discussions in anticipation of the ratification of this agreement around diking,

irrigation, service provision agreements.

[K. Whittred in the chair.]

All of that is taking place. Again, whilst I don't in any way

question the legitimacy of raising the issues, I must say that I have an

optimism about this start that Delta and the Tsawwassen First Nation have made

that apparently the member does not share.

G. Gentner: I want to make sure I've got this straight. The

minister said these lands are owned by people. Could he tell me who owns these

lands?

Hon. M. de Jong: I stand corrected. They are leased by

individuals who have the same interest today in having them serviced and

maintained that they had yesterday.

G. Gentner: They're leased from the Crown — a significant

chunk of land that the minister should know is on the hopper. I do want to

return to those leased lands and those expropriated victims, who have constantly

had legal arguments and challenges on the validity of their lost livelihoods.

Just for the record, I'm glad the minister corrected himself. The

significant chunk of land, the Brunswick Point lands, are owned by the Crown.

S. Simpson: I just want to go back for a couple of

questions related to the subsurface resources on page 35 of the schedule. I

think the minister might have referenced this in answer to a previous question.

I was just coming in the door and I'm not sure I heard it all, so I'll put it

again.

In the instances where resources are being considered to be

extracted, exploited or gathered, are there any changes around the environmental

assessments or implications of that from what currently goes on in the province?

It's

chapter 4, page 35,

article 22.

Hon. M. de Jong: The answer really engages a more detailed

discussion around

chapter 15, which lays out the regime that will be in place

and the relationship that will exist between the Tsawwassen First Nation

government and the province of British Columbia as it relates to environmental

stewardship and regulation. It might be better for us to canvass that in the

chapter dealing specifically with the environmental relationship, because I

think the member might have additional questions on a broader sphere.

M. Sather: I wanted to get some sense from the minister

with regard to these lands — those that are agricultural lands or in the

agricultural land reserve, those that are removed and the Brunswick Point lands

— with regard to birds and bird conservation. Specifically, I want to talk a

little bit about shorebirds, because this is an area of huge significance to

shorebirds of western North America.

[1105]

I'm not clear, and I want to make it clear. It's not a question of

me passing any judgments or having any judgments on the ability or the

intentions of the Tsawwassen First Nation with regard to conservation. I'm not

understanding how conventions that are in place play out with regard to the

Tsawwassen law.

For example, we have the Western Hemisphere Shorebird Reserve. I

was just looking, while the last couple of members spoke, at what the status is

of some of those birds, and it's shocking, quite frankly. The birds that I

looked at that are significant to that area that are in decline and are of high

conservation concern — that means the decline is not slight — are the American

golden plover, the solitary sandpiper, the whimbrel, the dunlin and the

short-billed dowitcher. Other birds that are listed as small population are

American oystercatcher, sanderling and western sandpiper.

If members have had an opportunity to visit that area, when some

of these birds — such as groups of western sandpiper and dunlin — take flight,

there's an actual cloud of birds, and it's a real spectacle to see. To hear that

the western sandpiper is a small population now is of great concern.

I'm wondering how, for example, the Western Hemisphere Shorebird

Reserve and these concerns are going to play out in terms of conservation on

Tsawwassen lands. It's difficult to imagine how a first nation could have the

resources to deal with that issue. Will they work hand in hand with the Ministry

of Environment and Environment Canada?

More importantly, I'm wondering if the statutes, the international

agreements with regard to shorebirds will still have effect. If the minister can

answer that now, I'd appreciate it. If not, if he wants to come back to it

later.

Hon. M. de Jong: Two references. I'm going to suggest to

the member that part of the answer lies in

chapter 11 that deals specifically

with migratory birds. There's an entire

chapter of the agreement that we'll get

to that deals with migratory birds.

The other reference I'd make to the member is the

section that we

canvassed — and we did actually talk about this specifically in

chapter 2 —

dealing with international agreements and obligations, which is contained at

section 34 in

chapter 2 and lays out specifically the protocols around ensuring

that proper respect is given for the type of international agreement that the

member has referred to. But we'll certainly be coming to a

chapter dedicated

specifically to migratory birds.

D. MacKay:

Section 36,

chapter 4, deals with the addition

to or removal from Tsawwassen lands.

I wanted to ask a question about

section 37 where it states:

"Nothing requires Canada or British Columbia

[ Page 8927 ]

to assume financial or other obligations associated with any addition to

Tsawwassen Lands, including paying any costs arising because the lands added are

not contiguous to Tsawwassen Lands."

The question I want clarification on: if the lands are contiguous

to Tsawwassen lands, is the province or the federal government financially

responsible in any way to see those lands added to the Tsawwassen lands?

[1110]

Hon. M. de Jong: I'm advised that the legal drafting

confirms that in either circumstance, contiguous or non-contiguous, there is no

liability and no responsibility for costs.

D. MacKay: My final question under

chapter 4 deals with

that for appendix C-5 it states that "the rights and interests that Tsawwassen

First Nation or Tsawwassen Members ever had, now have or may have in the future

in the mines and minerals referred to in clause 96" are no longer there. I

wonder if the minister could tell me what minerals are there.

The fact that Canada is going to pay the Tsawwassen the sum of $2

million to acquire those mines — is this something that the Tsawwassen people

themselves have been mining over a period of time? If so, are any environmental

encumbrances going to be assumed by the province because they're being taken

away from the Tsawwassen with a sum of $2 million attached to them?

Hon. M. de Jong: I apologize for the delay. I wanted to

make sure I conveyed accurate information.

In an earlier negotiation related to the residential development

that I think the member is familiar with, the surface rights to this land were

transferred. The subsurface rights were not. By virtue of this

section and the

transaction referenced therein, the subsurface rights to that subject parcel of

land will be returned to the Crown in the right of the province of British

Columbia.

D. MacKay: I needed a bit more clarification on that. The

subsurface rights will be returned to the Crown from the Tsawwassen band. I

think I saw some nodding, and if that's the answer….

I'll wait for an answer, Madam Chair.

Hon. M. de Jong: I am advised that by virtue of this

transaction the Tsawwassen First Nation are releasing their claim to these

subsurface rights. Actually, the transfer takes place between the Crown in the

right of Canada and the Crown in the right of British Columbia, so it's

technically a transfer from Canada to British Columbia.

[1115]

G. Gentner: I just want to go back to the course of the

discussion of specified lands — that being, of course, the Brunswick problem. I

say it's a problem for many farming communities and particular families because

the land was expropriated under, back then, the harvest board, and today their

life is still in flux, not knowing what's going to happen.

There are various degrees of interest in the land, of course. It

was expropriated namely for the need of potential industrial development.

However, even in the later '70s the government of the day suggested that most of

this land will not be used for farmland. This was post-NDP-Dave-Barrett era, and

the Delta farm expropriation victims anticipated that their land would come back

to them. The families had deep roots in the land and the community. We're

talking about pioneer first generations from the 1870s, 1880s, 1890s.

Some of those families have salvaged the land through

dike-building. They've also accommodated the wildlife concerns of the past, and

they enhanced wildlife through the development of the Delta Farmland and

Wildlife Trust.

My question to the minister is: what assurances will this

government give that if or when this land is moved over to TFN, this wildlife

trust will continue?

Hon. M. de Jong: There is, as I think the member knows, a

chapter dedicated to the issue of wildlife management,

chapter 10. To the extent

that there are questions relating to the overall scheme for wildlife management

and the interplay between the Tsawwassen First Nation government and the federal

and provincial authorities, we can perhaps canvass that at that time.

The Chair: Just before I recognize you, Member, I was going

to ask if are we ready to move on to

chapter 5. Is the member's question related

chapter 4?

G. Gentner: Yes, hon. Chair.

Returning to the specified lands in

chapter 4, on the short-term

leases and the high lease costs that dictate the farm operation within the said

lands, buildings of such, such as houses and barns, decay. They seem to

deteriorate after time.

For 25 years Public Works — of course, that was BCBC — maintained

these buildings. When you go through parts of Delta, they're referred to as the

red barns. We call it the BCBC red. They've traditionally kept those heritage

sites, somewhat tattered but somewhat together.

Again, what is the province's commitment to maintain those types

of structures within its Crown lands?

[1120]

Hon. M. de Jong: Insofar as there may be lands and

structures that remain within the provincial jurisdictional orbit, I am not

aware of any plans to alter the activity or the efforts that are presently in

place to maintain them. It is perhaps something the member…. I may, following

the adjournment, make an inquiry of the Ministry of Agriculture and Lands, but

I'm not aware of any plans to alter the present management regime.

G. Gentner: It begs a question, therefore. Some of these

culturally modified structures, if you will, are seen as heritage sites. What

commitment, if or when the TFN take control of these lands…. Will those heritage

sites,

[ Page 8928 ]

barns, etc., be maintained, and will they be understood by the province as

provincial heritage interests?

Hon. M. de Jong: If the member has information, I'm happy

to receive it, but I'm not actually aware of any circumstances in which a

dedicated cultural or archaeological site exists. The member may have some

information to that effect.

Beyond that, I should be as clear as I can with the member. If

options are exercised in a way that the final agreement provides for and if they

are exercised within the 50-year period such that the subject lands become part

of the Tsawwassen settlement lands, then all of the Tsawwassen First Nation

governmental jurisdictions that this agreement provides for would generally

apply. I think the member knows that, and I should confirm that on the record.

G. Gentner: Yeah, it's a valid point that the minister

makes, and I know how the chronology is going to work and how it all plays out.

It makes perfect sense to me now. The concern is that on the municipal heritage

registrar, there are assets that have been identified, and the municipality is,

of course, a creature of the province. The province has, in its wisdom, decided

to potentially move those assets to the TFN.

Therefore, there's no guarantee by the province, which has made a

decision on behalf of Delta to move this land and its assets to the TFN, to

maintain the significant historical artifacts — barns and buildings — that have

been identified by the municipality.

[1125]

Hon. M. de Jong: No, I think the member is correct. If an

option were exercised and that triggers a series of events and transfers, he's

right: there would be no guarantee of further provincial involvement beyond that

date.

G. Gentner: It's another reason why Delta has had some

problems with the lack of consultation through this process. Although heritage

may not be seemingly important to the government of the members opposite, it

certainly is part of much of the downloading traditionally from senior

governments to local governments to try and maintain these historical assets.

Just a quick question on what the minister feels on these lands.

Do the farmers have an unextinguished legal interest in the lands and/or a right

to purchase these lands pursuant to applicable expropriation legislation?

Hon. M. de Jong: I appreciate the spirit with which the

question is asked, but I am not going to render that opinion in these debates.

The Chair: Member, continuing with

chapter 4.

G. Gentner: It is a significant question because, of

course, all the families who were expropriated years ago — historical families

whose lives have been placed on hold and were told that there is a possibility

they would get their land back — would have appreciated an answer. We'll see if

they have at least some legal interest in these lands they once owned. It's

unfortunate the minister doesn't want to go there, so to speak.

I suppose that when you look at the Expropriation Act and how

these lands came about. if the farmers have what appears to be a good legal

argument that they have unextinguished rights, it makes more sense for

government to pull the backup lands off the negotiating table. Does the minister

agree?

Hon. M. de Jong: I'm at a loss to know what part of

chapter

4 we are now dealing with.

G. Gentner: We are dealing with the specified lands from

which the farmers were expropriated and have keen interests in getting back.

That's quite relevant to the

section we are exploring.

Does the minister or the government have any inkling to assist

farmers and longstanding farming families in the loss of their farmland?

Hon. M. de Jong: The member is, I think, aware that the

question around what, if any, legal rights may exist is very much before the

courts and is being considered. I understand there is a pending date before the

courts.

It shouldn't surprise the member to hear that I am not going to

involve myself in that discussion, which is taking place in the proper forum.

G. Gentner: Just one quick question, then, if the minister

believes that this has potential. It involves some legal decisions before the

courts, like the TFN and all first nations. Will the government provide some

monies to these affected farmers in the same way as it's provided funding to the

treaty process so that they can have a proper day in court?

Hon. M. de Jong: Truly, with the greatest respect to the

member, who I know believes in this matter and wants to pursue it, that falls

completely outside of the ambit of the

chapter and the agreement that we are

discussing.

[1130]

M. Karagianis: I'd like to ask questions specific to

sections 52 through 57. They're all chronological.

Starting with "Highway 17 corridor,"

section 52:

"On the Effective Date: a. the Highway 17 Corridor is not

part of Tsawwassen Lands; b. British Columbia owns the Highway 17 Corridor

except for Subsurface Resources which are owned by Tsawwassen First Nation; c.

British Columbia owns the Highway 17 Corridor for use for provincial public

highway purposes, subject to existing works of Public Utility set out in

Appendix Q-2; and d. Tsawwassen First Nation may use the Subsurface Resources if

that use is consistent with the use of the Highway 17 Corridor for provincial

public highway purposes and works of Public Utility."

I would ask, if I may: what is the legal context here for

use of subsurface resources in that highway corridor? Could the minister give us

some examples of what that might be and how that might occur without in any way

affecting the use of Highway 17 corridor?

[ Page 8929 ]

Hon. M. de Jong: I think the member's question — and it is

why I've been talking to the staff here — is essentially: "Why is 52 here?"

Particularly, I think the member has been asking: "Why is 52.d here?" I think

that was the essence of the member's question.

Three parts to the answer. First of all, it is emphasized to me

that it is a permissive section, so there was nothing specific in mind by the

inclusion. However, as we have thought about what permissive might entail, I am

reminded about the unique circumstances by which the road was built, essentially

plowing through a reserve, and I think the member knows this.

[1135]

There is some potentially archaeological interest in the

subsurface area. This would permit that. As the member knows, the highway runs

through some lands. It is conceivable, for example, that a utility corridor

might need to traverse or intersect through the subsurface through that

corridor. So those are two that come to mind, but there was nothing specific in

mind that I can point the member to, to say that it is in anticipation of that

event that 52.d exists.

M. Karagianis: One of the things that did cross my mind in

reading this, understanding that it is a permissive

section but knowing that

subsurface rights often take unforeseen directions and could in the future…. I

know that in the case of acquisition of aggregate, this is one of the pieces of

the Mining Act that has given many communities a great deal of concern because,

of course, aggregate can be found under agricultural land that's currently

growing food.

Aggregate can be found in the midst of urban communities.

Aggregate can be found in sensitive ecosystems. And often there is a great deal

of tension between government and aggregate companies about acquisition of that.

If I put that into the scenario here and look at the potential of

aggregate…. I realize the minister talked about, perhaps, heritage value and

archaeological value for first nations communities because the road has gone

through traditional lands here.

Let's also take that to the point where aggregate was discovered

there, and it was in the economic interest of the Tsawwassen First Nation to

pursue that. What kind of tensions and rights does that supersede on the use of

the Highway 17 corridor, for its current use?

Hon. M. de Jong: I think the short answer is that, to the

extent that the

section provides for ownership and the possibility of the kind

of activity that the member has speculated about, it would have to be carried

out in a way that, first of all, in no way adversely impacted the operation of

the highway and then, secondly, is consistent with all of the other

environmental regimes provided for in the various parts of the final agreement.

M. Karagianis: I appreciate that there are certainly many

restrictions in place, but I also know that often mining interests do take

precedence over many, many aspects of other regulation. But that actually then

leads very much into the next section, 53: "If British Columbia no longer

requires any portion of the Highway 17 Corridor for provincial public highway

purposes: a. at the request of Tsawwassen First Nation, Tsawwassen First Nation

will take ownership of that portion in fee simple, at no cost…."

Do I read into this, then, that the province sees no value in this

highway beyond its current use and that should, for some unforeseeable reason,

that corridor no longer be used for public access to, say, the ferry terminal,

this road has no dollar value at all?

Hon. M. de Jong: Thanks to the member for the question,

because to the layperson reading this, it would elicit precisely the question

the member has asked.

Let me emphasize this. There is no expectation on the part of the

government of British Columbia that there will come a time, in anywhere

approaching the foreseeable future, when this corridor is not required for

Highway 17, for that highway — no expectation whatsoever.

[1140]

However, the

section does recognize the unique history of the

corridor itself, how it was acquired, and the circumstances under which it was

acquired and constructed. It does recognize the fact that if that day were to

ever arrive — we don't foresee it — the land upon which it's situate, the

corridor, would be returned to the Tsawwassen in the circumstances described

here. We don't foresee that day at all at this stage of the game, but it was

important for the Tsawwassen to derive the level of recognition of the history

that is reflected here.

M. Karagianis: Certainly, no one can foresee the future,

and this is a permanent agreement on these lands, with no end date, with no

expiry date. So we can't anticipate what may happen ten, 15, 30, 50 years into

the future.

But I do want to ask a question at this point. How wide, in fact,

is the Highway 17 corridor? It will not be specific to just the blacktop that's

there. How wide is that corridor, at this point? Is there potential or an option

for the Tsawwassen First Nation to acquire some piece of that corridor that's

not currently being used specifically for blacktop?

What I'm basically saying is, is the corridor wide enough that

there may be some other aspects of that corridor that would be of interest to

Tsawwassen outside of what is blacktopped right now for access to the ferry

terminal?

Hon. M. de Jong: I don't have the answer to the first part

of the question. I can get it. The corridor is defined by the Highway Act and

is, I think, gazetted that way, so I can endeavour to obtain that information

for the member.

No, I'm not aware of any parcels that fall into the category or

the description that the member has provided. The corridor is dealt with in its

entirety through the provisions we have dealt with. But I will endeavour to

obtain for the member — I'm not sure a legal description helps — maybe a site

plan or something that would define that further.

[ Page 8930 ]

M. Karagianis: I'd be happy to have that information,

because I would anticipate that perhaps this corridor may not be standard in its

creation. It was created very specifically to serve a purpose that is slightly

unusual in the way highway corridors are established. There may, in fact, be

extraordinary circumstances here, so I'd be interested in seeing what that is.

section 54, then, following this. Again, this addresses the

possibility that at some point the province would be devolving this corridor for

some reason and talks about consultation, particularly in point b, that the

Tsawwassen First Nation would "provide reasonable notice to Canada, British

Columbia, the Greater Vancouver Regional District and the Corporation of Delta"

in respect of their acquisition of this.

Has any discussion taken place on those surrounding communities

having equal opportunity to access that corridor, or is it simply seeing that if

the province has no need of that, that it would automatically devolve to

Tsawwassen with no other potential stakeholders asking for interest in that?

[1145]

Hon. M. de Jong: Three things, again. First of all, there

have been no discussions of the sort that are contemplated in this section,

because no one contemplates the eventuality that it refers to.

Secondly, and I think the member knows this, before any decision

on the magnitude of that which would trigger this in the previous section, which

is essentially the decommissioning of a major arterial highway, there would be

extensive consultations with a variety of stakeholders, communities and people,

and there would, presumably, be a great deal of interest in that.

Thirdly — and this might be the most salient point from the

section — if that decision was made, if those consultations proceeded and the

decision by the provincial government of the day and the ministry of the day was

ultimately to decommission the highway in the manner contemplated by the

sections, it is fairly clear here that the corridor would revert to the

Tsawwassen. It would impose upon them some obligations around consultation as

well. So there would be a two-tiered process in that respect.

Following the decommissioning decision, there is then a decision

that has to be made by the Tsawwassen around their intent to add the lands to

their treaty settlement lands. There's a notice requirement that this provision

includes, and then some consultation requirements that this act includes.

Again — I know I've said this five times already — there have been

no discussions, because at this point, no one is even contemplating this

situation taking place. But the member is correct in pointing out that we are

discussing a treaty that we hope will stand the test of time. It is hard enough

to look 20 years in the future, let alone 80.

M. Karagianis: I appreciate that we can't anticipate what

will happen in the future, but certainly these are important clauses. I think

that the potential in the future is unknown to us, but it will be worth watching

to see if, at some point, there is devolution of that particular

section of

highway.

The next

section here,

section 57, deals with the Deltaport Way

corridor. First, I would ask the minister why this particular corridor is not

being treated with the same gravity and depth of legal protection as Highway 17.

Why is this Deltaport corridor being treated in some different way than Highway

17?

Hon. M. de Jong: I wonder, as I think about the more

extensive answer, if the member can help me. There are some obvious differences

in terms of the language. What parts of that is she particularly wanting me to

focus on in my answer?

M. Karagianis: When I look back at Highway 17, we have

clauses 52 through 56 that deal with the rights of Tsawwassen First Nation

peoples to subsurface resources. We talk about devolution of the

responsibilities of the highway in the future and how that might occur. Yet it

would seem to me that the Deltaport corridor is of equal importance and

significance as it accesses Deltaport.

I'm curious as to why there is one simple phrase here that simply

talks about consultation before any new works in that corridor can occur. It

would seem to me that this is a fairly significant aspect of access in and out

of the Tsawwassen treaty lands at this point, even more significant in many ways

than Highway 17. I'm surprised that there is so little devoted to that

particular corridor in the language of this treaty. Certainly, I would ask the

minister if he can elaborate, then, on new works that would be anticipated

within this corridor.

[1150]

Frankly, one of the pieces of the treaty negotiation that has

concerned me the most is the future, and anticipated future expansion of

Deltaport and how, in fact, that will have a bearing on all of the rights of the

Tsawwassen people around this treaty. I was actually surprised to find that this

particular corridor had so very little language to it in the treaty when I would

have expected something more expansive.

We're talking here, as the minister said, Highway 17…. It's highly

unlikely that there would be a devolution of this particular corridor to the

Tsawwassen people, and yet it warranted at least a page of clauses to deal with

that eventuality.

Whereas the Deltaport here and this corridor through this

treaty land, I think, is of particularly significant and profound interest to

everyone involved in this treaty process — the future of this port, the

expansion capacity anticipated of this port. So I would like the minister to

perhaps just elaborate a little bit more on why the simplicity here. Is there

some particular reason why it has been treated in such a simplistic way?

Hon. M. de Jong: There is a difference that the member has

correctly identified in what accounts for, in part, the differing circumstances

around the corridors themselves. In the case of Highway 17, of course, the

Tsawwassen First Nation continues to own the undersurface rights. There was an

issue there.

[ Page 8931 ]

The short answer is that, whilst on the one hand there was a

position taken to the negotiating table that in the event of a decommissioning

or in the event of a significant change of use — I probably shouldn't use the

word decommissioning because I suspect that has some legal connotation and I

don't mean it in that way — there would be this automatic right of reversion….

What is contemplated here is where there are new works — and that

could be something as straightforward as a new lighting system that, because of

where the corridor is located, could have an impact on the Tsawwassen First

Nation — there would be consultation between the parties. But it does not,

obviously, provide for the automatic reversion to the Tsawwassen First Nation

that exists with respect to the Highway 17 corridor. That's a product of the

position that was taken at the negotiating table by the province and, I believe,

the federal Crown.

M. Karagianis: Is the minister, then, saying that this

particular corridor is wholly or partly owned by the Tsawwassen under these

treaty rights, or is ownership of this corridor left with the province or the

federal government?

Hon. M. de Jong: To the member: exclusively with the

province.

[1155]

M. Karagianis: Again, my question here is: if the province

is holding this corridor exclusively and it has not got any of the same

devolutionary rights that apply to Highway 17…. I understand that.

It says here that the province "will Consult with Tsawwassen First

Nation before authorizing new works…." What kind of new works would that be? In

fact, is the corridor currently defined as being adequate? Again, I would ask:

how wide is this corridor? In the future, if the port were to expand

significantly, would that corridor then need to be widened? Would the highway

need to be widened?

What implications are there long term for Tsawwassen First Nation

in the province's ownership of that corridor?

Hon. M. de Jong: The member raises a good issue. I want to

point out that nothing contained in this

section speaks to any rights to widen

the corridor or creates any rights on the part of the Crown or any other party.

So that is there.

In terms of

section 57 and new works, one can imagine the more

minor kinds of changes of the sort that I just mentioned in terms of lighting,

and one can imagine larger-scale or broader changes that might occur as time

passes and the obligation that has been negotiated and which exists within the

agreement to consult. But it does not create any automatic right to be able to

expand the corridor.

I will endeavour, as I did with the Highway 17 issue, to obtain

for the member a site plan of the corridor and its precise dimensions so that

she has that information.

Noting the hour, Madam Chair, I would move the committee rise,

report progress and seek leave to sit again.

Motion approved.

The committee rose at 11:57 a.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was

granted leave to sit again.

Hon. M. de Jong moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 1:30 p.m.

this afternoon.

The House adjourned at 11:58 a.m.

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