1998/99 Legislative Session: 3rd Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, APRIL 15, 1999

Afternoon

Volume 14, Number 7

[ Page 11833 ]

The House met at 2:06 p.m.

P. Nettleton: On behalf of this side of the House, we're delighted to welcome realtors from throughout the province who are advancing their issues with both sides of the House. As former realtors, I and my colleague the member for North Vancouver-Seymour have some sense of the challenges that face you, and we wish you well. Again, we would ask that all members join in welcoming realtors from throughout the province.

R. Kasper: Hon. Speaker, we have present, sitting on the floor, a constituent of yours and a former member, Mr. Fred Jackson. Fred is also here representing the Greater Victoria Real Estate Board. I'd like the House to welcome him.

Hon. C. McGregor: While I don't have the honour of describing myself as a realtor, I've been a homeowner. I think that's important to the real estate members who are here today, as well.

I'm very pleased to introduce three members from the Kamloops Real Estate Board who are here with us today: first, Linda Heinen, who's the newly elected president of the Kamloops and District Real Estate Association; Caroline Boles, who's the immediate past president of the Kamloops and District Real Estate Association; and Patrick Lindsay, the present executive director of the Kamloops and District Real Estate Association. I'd like to welcome them and, of course, my former neighbour, Fred Jackson. I'm very pleased to welcome him here in the House as well. Would the House please make them all welcome.

L. Stephens: Today I would like to introduce to the House two members of the Fraser Valley Real Estate Board: my realtor and a resident of Langley, Ms. Tammy Evans; and Dan Bennett, who is a realtor in Langley as well. Would the House please make them welcome.

M. de Jong: It's a pleasure to see two friends of mine in the gallery, Terry McSpadden and Angela Clayton, and to see them dissociated from their pagers and cellular phones for just a few moments. They are with the Fraser Valley Real Estate Board, and it's great to have them here.

Hon. J. MacPhail: I'd like to join the member opposite in welcoming Dan Bennett, who is the president of the B.C. Real Estate Association, as well as coming from Langley. With him is Gerry Thiessen, who is the past president of the B.C. Real Estate Association. So I would make them welcome to our Legislature.

W. Hartley: Today in the members' gallery are a couple of friends that I've known for many years: Craig Speirs and his spouse Diane Speirs. Craig is here to receive recognition as a 25-year employee in the town of Maple Ridge, and he has done an extremely valuable service for our community. Please make them welcome.

[1410]

D. Symons: I would also like to introduce one of the realtors, Valerie Berg. I knew Valerie in a previous life, before being elected. I was her math teacher many, many years ago. I won't say how many -- for her sake and mine. Would the House please make Valerie welcome.

J. Reid: It's my pleasure today to introduce to the House two people: one is Ray Francis, a realtor from the Comox Valley, and the other is Jim Stewart, also a realtor and the president of my riding association. Would the House please make them welcome.

J. Cashore: In the members' gallery are two friends, Ron Patterson and Mike Halvorson. Ron is a Coquitlam resident and a school principal, but he's also someone who, along with his wife Barbara, founded a local

chapter of the Compassionate Friends of British Columbia. It's an organization that assists the extended families of those who have suffered a tragic loss, and it assists them with the grieving process. Mike Halvorson is a student at SFU. Would the House please join me in making them welcome.

Hon. D. Streifel: I could have waited a bit longer, hon. Speaker; I'm building knee and leg muscles, up and down here. I'd like to recognize a couple of friends of mine in the gallery. They're with the Fraser Valley Real Estate Board.

Interjections.

The Speaker: Hush, members.

Hon. D. Streifel: You know, I never get the opportunity to get on my feet without getting heckled, even when I'm introducing my friends in the House. I think the folks opposite are extremely rude. Anyway, I said it with a smile, but it was serious.

I'll get on with my introduction. Barb Whitman and Donna Lou Gilbert are here from Mission and from the Fraser Valley Real Estate Board. They're here with their families. I expect to meet with them later. I enjoyed the social with them last night and, in particular, speaking with Donna Lou on the project that she has underway. I wish her luck and offer my help. So make them welcome.

G. Hogg: It's been a pleasure and an honour to follow the Minister of Fisheries in his introductions. I too would like to join in welcoming some members of the Fraser Valley Real Estate Board to the House today, particularly the president, David Herman; Barbara Wightman, the chair of the legislative and public affairs committee; and Valerie Berg from the riding of Surrey-White Rock. Also, I believe Barbara's grandson is here, Andrew Delmonico. He has been here before, and he is a sportsman and afficionado of politics. So would the House please make them welcome.

And one more. I note that my constituency assistant, Verna Logan, is here, as well as a volunteer who has worked in my office and is the owner of the South Surrey Eagles, the junior A champions of Canada. Would the House please welcome Verna Logan and Maureen Annable.

R. Neufeld: I resisted up until now. I thought we were going to make introductions from each side, but . . . . Because it's not often that someone comes from Fort St. John, I want to

[ Page 11834 ]

introduce them. Carolyn Krauss is here. She's a good neighbour of mine who just lives a few doors down. I'd like to welcome her to Victoria and hope she has a good time watching question period.

J. van Dongen: On behalf of my colleague from Fort Langley-Aldergrove, I would like to welcome 44 enthusiastic grade 11 students from Walnut Grove Secondary School in Langley. They are accompanied by their teachers: Victor Penner, Doug McGinn and Burns Madden. I ask the House to make them all welcome.

[1415]

I. Chong: I too would like to join in welcoming some of the realtors -- in particular, two who have been my liaison for the last few years. They've always shared ideas with me, and I think we've had great exchanges. I would ask the House to please welcome Alexis Beddoe and John Smith.

G. Robertson: With us today in the House we have Al and Pat Hodgkinson. Al is here today with his wife Pat, representing a prostate support and awareness group from Campbell River. This is a group that does a lot of advocacy work and information and provides a lot of comfort and support to people who come down with this terrible affliction. Al and Pat were with us today at the ground-breaking ceremonies for the new cancer treatment facility in Victoria at the Royal Jubilee Hospital.

Also, I'm really pleased to say today that I have some very special guests: my daughter Kimberly and her cousin and my niece, Krista Robertson. Krista is from Toronto and is out visiting us on the west coast. It's really a pleasure to see them both in the House today and have them in the building. So I'd ask the members to please make them welcome.

Hon. L. Boone: I would hate for individuals to think that Prince George didn't have any realtors, so I'd like to greet Dino Sinopoli and Judy Gaboury, who are here. With them is Dorothy Friesen, somebody who has been here many, many years -- as long as I have been elected. Dorothy has been with the real estate board in Prince George. They have just changed the name, so I can't say what the name of that board is now. It's no longer the Cariboo Real Estate Board; it's something else.

Interjection.

Hon. L. Boone: It's the B.C. Northern Real Estate Board -- okay. I would certainly ask the House to welcome them all here.

E. Gillespie: I'd like to acknowledge and thank the executive and the staff of the B.C. Real Estate Association for the work they do for all realtors and thank them for the reception they provided for us last night. I'd also like to introduce a constituent and a realtor with the Vancouver Island board, Ray Francis. Would the House join me in making him welcome.

R. Thorpe: On behalf of my colleague the member for Okanagan-Boundary and myself, I'd like to welcome Don Selby, who's representing all the hard-working real estate agents in the South Okanagan. Would the House please welcome Don.

The Speaker: For all the others in the gallery who didn't get mentioned: welcome.

Oral Questions

PAYMENT FOR PREMIER'S HOME RENOVATION

C. Clark: When the Premier was on this side of the House, he used to point across at Bill Vander Zalm and say that his problem was that he couldn't tell public interests from private interests. Will the Deputy Premier tell us today exactly what the difference is between $20,000 in home renovations done by casino licensees and $20,000 in a brown paper bag?

Hon. D. Miller: I hope that members will listen to this point, because I think it's an important one. After a very divisive debate in the eighties we made a fundamental decision in this chamber to bring in legislation called conflict-of-interest legislation. That legislation provides an opportunity for anyone -- for members or members of the public -- who feels that they have evidence of some wrongdoing or violation of the act to take that information to the commissioner and have that issue adjudicated. I would have thought that that would have ended the necessity for the kind of muckraking that this Liberal opposition is indulging in today.

Interjections.

The Speaker: Members, come to order.

First supplementary, the member for Port Moody-Burnaby Mountain.

C. Clark: When the Premier was on this side of the House, he used to talk a very good game about Bill Vander Zalm's inability to tell the difference between public and private interests. Now he sits there today, and he looks a heck of a lot more like Bill Vander Zalm with a union card.

[1420]

Will the Deputy Premier tell us why it is now okay to have someone build your deck -- to have your friend do $20,000 worth of home renovations -- while at the same time you grant that friend a conditional casino licence-in-principle -- or whatever they want to call it -- worth millions of dollars, despite the fact that the local government doesn't want it and despite the fact that it's connected with illegal gambling?

Interjections.

The Speaker: Order, members.

Hon. D. Miller: Let me make two points. One is to reiterate the answer I gave in response to the first question -- there is a process -- and to point out that in fact it's the Premier who has asked the conflict-of-interest commissioner to make a ruling on these questions. The Premier has asked. He's taken the right route; he's using the legislation that's available to all members -- unlike the members opposite.

Interjections.

The Speaker: Order, members.

[ Page 11835 ]

Hon. D. Miller: The second point I want to make is this: I would invite that member -- and I will give you a guarantee now that she will not have the courage -- to step into the corridor and repeat that question she just asked, verbatim. She will not have the courage. I invite her to do just that.

Interjections.

The Speaker: Order, please.

CASINO APPROVAL PROCESS AND PREMIER'S LINKS TO APPLICANT

G. Plant: On July 29 of last year, this government's cabinet apparently decided to hand over all authority for granting casino licences to the gambling minister. According to the taxpayer-funded lawyer hired by the Premier at our expense, the Premier was at that meeting. So my question is to the minister responsible for gambling: will he tell us when the Premier, Adrian Dix or any other member of the Premier's staff first discussed with him this change in the casino approval process?

Hon. M. Farnworth : There has been no change in the casino approval process in any way, shape or form. What I would say to the hon. member is that there is an investigation underway by the conflict-of-interest commissioner. He is reviewing the entire process of how things were handled at the cabinet table, and he is making his report. In due course, he will release that to this House, where the member will be able to see everything that went on. I would say to the hon. member that if he has anything that says he knows something that happened there other than phony allegations, he go to the conflict-of-interest commissioner and outline them to the conflict-of-interest commissioner.

The Speaker: First supplementary, the member for Richmond-Steveston.

G. Plant: The phoniest thing of all is this minister's refusal to answer even the most basic questions about this.

Let me try another question -- a factual question. The minister may even know the answer to this question. When did the Premier, or Adrian Dix, first tell the minister of the Premier's connection to Mr. Pilarinos and the North Burnaby Inn casino application? Was it before or after cabinet gave the minister the power to award licences?

Hon. M. Farnworth: Again, I would like to say that the only thing that I find phony is a member who is supposed to be a lawyer and who is supposed to have legal ethics wanting to sacrifice them to make political points.

Hon. Speaker, I made a statement. I was asked that question a number of times, and I was made aware very early on after becoming minister that the Premier knew Mr. Pilarinos. Having said that, my point to the member is that if he thinks there is anything untoward, or if he thinks there is anything that has not been disclosed, then he should go to the conflict-of-interest commissioner. Use the laws that are in place. You're supposed to be a lawyer. I'd have thought you'd have known that.

[1425]

The Speaker: Minister, minister . . . .

PAYMENT FOR PREMIER'S LAWYER

J. Weisgerber: My question is for the Attorney General. In 1990 the member for Esquimalt-Metchosin, the now passionate defender of the Premier's privacy, released the Bud Smith tapes. These illegal recordings of a private conversation between the then Attorney General and an assistant deputy minister in the Attorney General ministry resulted in legal action by a lawyer named in those conversations. Mr. Smith was denied his legal costs. Given this important precedent, how can this Attorney General possibly justify his decision to pay for the Premier's high-priced lawyer?

Hon. J. MacPhail: Hon. Speaker, we've made clear that the policy, which was on an ad hoc basis up until 1996, was made clear to everyone -- that in the course of the performance of duties, legal counsel will be provided up until a wrongdoing is found.

The Speaker: First supplementary, the member for Peace River South.

J. Weisgerber: First of all, let me say that yesterday the Deputy Premier said that it was a longstanding practice in this House. Today we understand that it was a 1996 decision to start covering legal costs. But let me say this: Bud Smith was clearly acting in his official capacity as Attorney General when making the call that was illegally taped and then released by the urban cowboy from Esquimalt-Metchosin. The government denied Mr. Smith his legal costs, even though ministry officials had their costs covered.

But the New Democrats have chosen to treat themselves differently. The Premier's home was only one of many sites named in the search warrant that led to the search at the Premier's home. The Premier himself denies . . .

The Speaker: Member, your question please.

J. Weisgerber: . . . any official involvement in the matter under investigation. Why in the world should taxpayers be stuck with the bill for the Premier's lawyer when others have been denied that right?

Hon. J. MacPhail: Hon. Speaker, there has been an ad hoc approach to these matters up until late 1995-96 . . .

Interjections.

The Speaker: Members . . . .

Hon. J. MacPhail: . . . in which there is now a policy that applies to everyone. The policy is based on the practice of other jurisdictions at the public service and political levels, and it's based on the private sector practice as well.

[ Page 11836 ]

ABORIGINAL AFFAIRS MINISTRY CONSULTANT'S CONTRACT

M. de Jong: Well, John Heaney has followed a pretty interesting career path with the New Democratic Party.

Interjections.

The Speaker: Members, come to order.

M. de Jong: He started as damage control specialist on the Nanaimo bingo scandal, then he went over to the Nis g a'a implementation propaganda office, and now he's taken over damage control on the Casinogate file involving the Premier. So now that his job with the Nis g a'a office appears to be finished, will the Minister of Aboriginal Affairs confirm that he was paid $114,265 for a contract that was extended five times within his ministry?

Hon. G. Wilson: I believe that those figures are about right.

The Speaker: First supplementary, the member for Matsqui.

M. de Jong: Well, here's the additional piece to the puzzle. According to the guidelines set out by the comptroller general, all contracts with a total potential cost of over $50,000 are to be "awarded competitively, either by open advertisement or by invitations to bid issued to three or more potential suppliers." Guess what, Madam Speaker: no tender, no invitation. Will the Minister of Aboriginal Affairs tell us why the comptroller general's guidelines were bypassed and ignored for Mr. Heaney, the NDP's very good friend?

[1430]

Interjections.

The Speaker: Order, members.

Hon. G. Wilson: The guidelines were not violated. All of the documentation has been provided to the Liberals through FOI. They have exactly the documentation information. They know full well, if they know how to read the documents, that in fact the guidelines have not been violated. I find the question to be completely irrelevant.

G. Farrell-Collins: It appears, hon. Speaker, that Mr. Heaney's contract was originally written up at $15,000 so it wouldn't fall within the $25,000 and $50,000 caps that are required. It was very quickly -- within days, almost -- extended to $25,000. Then it jumped up a full $50,200, to a total of $75,200. Then it promptly became $94,700, followed shortly by $103,800, and then, on the fifth occasion, went to $114,265. Does the Minister of Aboriginal Affairs believe that the way these contracts were granted falls within the guidelines that the comptroller general and the auditor general made with regard to the Now Communications fiasco in 1994?

Interjections.

The Speaker: Order!

Hon. G. Wilson: I'm delighted that the members opposite can at least read the contracts they've been given. The fact is that the contracts for Mr. Heaney were extended on a number of occasions, because the work and duties he was required to do were extended in light of the Nis g a'a debate, which was not concluded and remains to be concluded even at this time. So there is nothing untoward, nothing unusual and simply nothing that violates any of the guidelines in any of the information that has been made available to the members.

The Speaker: First supplementary, the member for Vancouver-Little Mountain.

G. Farrell-Collins: In fact, the auditor general, in his report into the Now Communications fiasco and the way the government had bypassed the guidelines at that time, made recommendations and said that those contracts were deliberately constructed to mislead and misrepresent, in order to get around the guidelines that were in place. He said it should never happen again.

Well, it's happened again. It's happened for the NDP's best friend. This contract was amended five times -- to go from $15,000 to $114,000. In all good conscience, does that member, who sat on this side of the House and complained about those issues at the time, believe that these guidelines were followed? Or is he now completely morphed into a total New Democrat?

Interjections.

The Speaker: Members, I know the minister will not violate the guidelines, and the answer should be brief.

Hon. D. Miller: Absolutely -- at least as long as the question, hon. Speaker.

I was simply going to say that I suppose both caucuses can indulge in attacks on staff. We can talk about the million-dollar mailer; we can talk about the staff who were fired to take a fall because the Leader of the Opposition was embarrassed. But most of all, I want to say that British Columbians are asking more and more what the fiscal plan of this opposition would be. I have even been asked whether or not their fiscal plan will be the same as one used on the Georgian Court Hotel. People are even asking me that.

The Speaker: The bell concludes question period.

Reports from Committees

P. Calendino: I have the honour to present the report of the Special Committee to Appoint an Ombudsman. I move that the report be taken as read and received.

[1435]

Motion approved.

P. Calendino: I ask leave of the House to suspend the rules to permit the moving of a motion to adopt the report.

Leave granted.

P. Calendino: I move that the report be adopted.

[ Page 11837 ]

I would just like to say a few words before we adopt it, to explain the process and to give my thanks and the thanks of the committee for the work of the office of the Clerk of Committees, who assisted us in making this selection.

We had about 238 applicants from all walks of life and from all across Canada. We had a number of interviews. We interviewed ten very, very good candidates. We finally came to a conclusion last Friday. I'm pleased to say that we have selected Mr. Howard Kushner as the next ombudsman for British Columbia.

If I can take a second, I would just like to say a few words about Mr. Howard Kushner. He brings a strong background in constitutional and administrative law and the operation of government to the office of the ombudsman. He is currently director of legal services for the Yukon Department of Justice, a position he has held since 1996. He has also lived in British Columbia and has taught in the faculty of law at UBC. He has wide experience in constitutional and other law.

Hon. Speaker, we can move the adoption of the report.

The Speaker: Before we put the question, I'm going to ask the member who is the Deputy Chair of the committee to say a few words.

C. Clark: As the Deputy Chair of the committee, I'd simply like to add that Mr. Kushner came very highly recommended to our committee. He is highly esteemed by all of his colleagues that he has worked with. I know he will bring with him the judgment, the integrity and the intelligence that we need to do this job. I am indeed very honoured to add my welcome on behalf of the official opposition and to make my recommendation on behalf of the committee to this Legislature for Mr. Kushner to become the next ombudsman of British Columbia.

The Speaker: Hon. members, I put the question. The question is the adoption . . . .

Interjections.

The Speaker: Order, please. Members, we are in the middle . . . .

Interjections.

The Speaker: Hon. members, we are in the middle of putting a motion, and everyone knows the rules about that: no debates, no discussion. The question is the adoption of the report.

Motion approved.

P. Calendino: I ask leave of the House to permit the moving of a motion requesting the Lieutenant-Governor to appoint Mr. Howard Kushner as the ombudsman for the province of British Columbia.

Interjections.

The Speaker: Members, it was very difficult to hear that motion because of the interruptions that are going on on the floor. I ask those interruptions to stop right now. All right. Member for Burnaby North, would you put your motion again, please.

P. Calendino: Okay, hon. Speaker. I ask leave of the House to permit the moving of a motion requesting the Lieutenant-Governor to appoint Mr. Howard Kushner as the ombudsman for the province of British Columbia.

Leave granted.

P. Calendino: I move that this House recommend to His Honour the Lieutenant-Governor the appointment of Mr. Howard Kushner as a statutory officer of the Legislature to exercise the powers and duties assigned to the ombudsman for the province of British Columbia pursuant to the Ombudsman Act.

[1440]

Motion approved.

Ministerial Statement

B.C. BOOK WEEK

Hon. I. Waddell: I rise to make a ministerial statement. As Minister of Culture, I'm pleased to proclaim April 17 to April 24 of this year as B.C. Book Week. Throughout the coming week, British Columbians are encouraged to celebrate the enormous amount of literary talent that exists within our province.

Many British Columbians are perhaps unaware that our province releases over 700 book titles per year, which range from local and natural histories to children's literature to books of poetry and novels. The publishing industry in B.C. is an important cultural industry worth $60 million per year to small businesses associated with the province's cultural sector, which overall employs more than 50,000 British Columbians.

Over the coming months, I am looking forward to talking to publishing industry representatives about how we can foster stronger economic activity and awareness with regard to our cultural heritage. British Columbia has the highest per-capita rate of readers in Canada, and our province continues to produce many extraordinary writers.

Today I have with me a few examples of some fictional works which are presently in the running for some prestigious awards. Pool-Hopping and Other Stories, by Anne Fleming, has been short-listed for the 1999 Ethel Wilson fiction prize; and Understanding Ken , by Pete McCormack, is a contender for the 1999 Stephen Leacock Medal for Humour. These are just two examples of recently published pieces of B.C. literature.

As I speak, people everywhere are reading works by young people's writers . . .

Interjections.

The Speaker: Order, please.

Hon. I. Waddell: People are reading in this province.

[ Page 11838 ]

. . . Ann Walsh and Eric Wilson; aboriginal writers Jeannette Armstrong from Penticton and Marie Humber Clements; novelists Alice Munro, W.P. Kinsella, Douglas Copeland and Jack Hodgins; historian Jack Boudreau; poet P.K. Page; and many others.

I encourage all British Columbians to attend local events next week at libraries, schools and community centres to discover the quality of B.C. books and their unlimited source of inspiration. As my own personal contribution, I invite the members to come on Saturday to the library in Vancouver to join with me. We'll be reading some poetry by B.C. poets. I hope members will come, will read out loud and read quietly next week, and will celebrate B.C. Book Week.

R. Thorpe: When the minister first rose, I thought perhaps the government was launching a cookbook and, with the first recipe, maybe a fudge recipe. I have firsthand knowledge about writing and publishing in British Columbia, as my wife together with three other women in Penticton . . .

Interjections.

The Speaker: Order, members.

R. Thorpe: . . . are members of a very successful Penticton writers and publishers group and have published four books.

The minister states that he will be meeting with writing and publishing interests in the future. With this government, it's always about tomorrow. I'm kind of intrigued that since we knew this was going to be Book Week . . . . Why wouldn't you have met with them before and perhaps announced some progress?

The minister talks about supporting British Columbia writers. On February 18, at the Stanley Theatre in Vancouver, he announced a $1.5 million cultural and heritage fund which would assist B.C. writers. That was the promise -- now the rest of the story. When some young high school students writing a project in Langley applied for a grant under the minister's program, they were told that publishing would not be funded. Ministry staff said it was an unfortunate mistake.

Writers in British Columbia have great talents. The official opposition applauds their efforts and encourages all British Columbians to read more books, to buy more books and to support British Columbia writers. I ask everyone to be strong supporters of all publishers and writers in British Columbia during Book Week.

The Speaker: The Minister of Small Business, Tourism and Culture rises?

Hon. I. Waddell: Yeah. I rise under standing order 17 to correct a statement that was made, and I ask leave to do that. The hon. member is simply wrong. I would think he would welcome B.C. Book Week . . .

The Speaker: Minister, minister.

Hon. I. Waddell: . . . and he'd welcome $1.5 million. There's money for publishing here, and I'd think he'd welcome that.

[1445]

The Speaker: Minister, order. The minister will take his seat. To correct a statement is not to debate the point but to correct the statement. I thank you for your intervention. Stay in your seat.

Interjections.

The Speaker: Members will come to order. I remind all members, ministers and those who reply to ministers' statements -- a comment to all ministers and to those who reply to ministers -- that the content of their statements is to be with as little controversy as possible, because it can produce other kinds of reactions. I would encourage all members to take that into account.

Motion without Notice

Hon. J. MacPhail: By leave I move that Mr. Jack Weisgerber, MLA, be substituted for the Hon. Gordon Wilson, MLA, as a member of the Select Standing Committee on Public Accounts and Committee of Supply

Section A.

Motion approved.

Orders of the Day

Hon. J. MacPhail: I call Committee of the Whole to debate Bill 51.

NIS G A'A FINAL AGREEMENT ACT

(continued)

The House in committee on Bill 51; E. Walsh in the chair.

On the schedule,

chapter 11 (continued).

M. de Jong: We were dealing, when we left off, with sections 19 to 23. If I can ask a final question around this . . . . I was thinking over the lunch-hour about how I might, in a final attempt, provoke the Attorney General to provide a response. Let me ask it from this point of view. By virtue of how this treaty has been negotiated and finalized, there are people in the Nass Valley who will not have the full right to participate in their local government. Maybe we can think of it in those terms.

[1450]

What does the government say to those people -- admittedly a small number of people -- who will be different than every other Canadian, different than every other British Columbian insofar as their ability to fully participate in the political processes involving their local government? They don't have those full rights. What does the Attorney General say to those people whose rights are being adversely impacted by this treaty? If there is a group of people who deserve an answer to that question, surely those people are the ones. And the Attorney General should be in a position to -- and I hope will -- address that issue insofar as it impacts, in a very real way, on those individuals.

Hon. U. Dosanjh: I'm sure that like other British Columbians, they will be able to look at the purposes of this treaty, the genesis of this treaty and the way the treaty was negoti-

[ Page 11839 ]

ated and understand that this is about the negotiation of Nis g a'a rights, Nis g a'a lands, Nis g a'a culture, Nis g a'a language and Nis g a'a governance to a great extent. To the lesser extent that their rights may be impacted, they have been provided with opportunities to participate in those institutions whose activities might impact their lives.

[P. Calendino in the chair.]

M. de Jong: I understand that motivation. Maybe that is the answer, then. In the competition between providing that empowerment to the Nis g a'a, in the government's mind . . . . In the process of providing that empowerment, it seems that the two governments -- including this government, the provincial government -- take the view that it was necessary to deprive one group of British Columbians of certain rights. This is what has happened here. The government can try to minimize that fact. The government can try to justify that by hiding behind some greater, nobler purpose, but for those people that is a fact.

Rights that every other British Columbian and every other Canadian will enjoy with respect to the election and governance of local government are rights that these individuals -- admittedly, not many -- will no longer enjoy.

After an hour of debate, the point has been made that I think and the official opposition thinks that that was a poor choice in these circumstances. Over the long haul, it is a choice that does not bode well for the kind of British Columbia that most people want to see built.

Hon. U. Dosanjh: We disagree with his understanding of the issue.

[1455]

M. de Jong: Unless there are other members that want to deal with those sections, the next heading deals with the transitional provisions of the agreement.

I'm looking at

section 27. The general question relates to the mechanical process by which this drawing down of powers is going to take place and how we get from that articulation of an intention to exercise a jurisdiction to the point where that is actually taking place. It's a general question about how

section 27 is going to operate in practice.

Hon. U. Dosanjh: I think the answer is to be found in paragraph 28, which sets out what occurs after the notice has been given. I believe that will satisfy the hon. member.

M. de Jong: We can go to paragraph 28. What I was trying to get a better sense of by asking the question . . . . I'm going to ask more specific questions as they relate to

section 28 -- for example,

section 28(

b) as it relates to

section 27. When we talk about the transfer of assets from federal and provincial institutions to the Nis g a'a institutions, there are the obvious ones, I suppose, relating to education and perhaps health care facilities -- though I'm not sure I know the status of the ownership of that health care facility in New Aiyansh. What other assets are contemplated within the meaning of

section 28(b)?

Hon. U. Dosanjh: These assets would perhaps be in the nature of buildings and facilities regarding health and schools and, if they exercise the authority to establish a police board, perhaps the police building and the like.

M. de Jong: I guess I am seeking a little bit more particularity. It's a fairly small community. We have a school in New Aiyansh and a school in, I think, Greenville -- I'm using the old terms. Beyond the real estate, beyond those traditional facilities, I'm wondering if there's an RCMP detachment. I'm not sure if that is an asset -- well, I suppose it would be -- that would be captured under these provisions. Are there other facilities? Beyond those that we've discussed, is there other real estate -- other facilities -- that would be captured?

Hon. U. Dosanjh: There might be. I'm going to try and provide a general answer to this. This is somewhat like an estimates debate, and I don't have all of that information. The hon. member is asking that question, and we can get that information through the Ministry of Aboriginal Affairs and provide that information at some point in the next couple of days. But let's get on with talking about the impact of the laws themselves.

M. de Jong: I appreciate that. Maybe we can add a further component to the previous question. I think that whenever the Crown, the government, presumes or enters into an agreement that calls for the transferring or potential transferring of assets to another agency, it is a legitimate question for members of this House to ask what the value of those assets is. I guess the first question would be: has an accounting, an inventory, been done which provides an indication as to the value of those assets which are potentially captured under sections 27 and 28?

[1500]

Hon. U. Dosanjh: I understand that the initial view of the ministry is that the school board facility is very old and perhaps not of much value. The health board facilities were not evaluated, nor were the RCMP's.

M. de Jong: Was any evaluation done, therefore? I think it's a relevant question when the Crown . . . . We've talked about the value of timber holdings; we've talked about the value of resources. We talked about valuing other assets. We talked about valuing the land. These are all difficult exercises quantifying values. But was any attempt made to evaluate the value of those assets -- any assets -- that are subject to the provisions of sections 27 and 28?

Hon. G. Wilson: I think that the member opposite would recognize that one would have to do an evaluation at the time that we were going to proceed. I mean, values will alter. The buildings that are there are old. They have depreciated in value; in fact, their capital depreciation, we believe, is zero. So outside of the facilities the member is referring to there, there would be a negotiated value when and if the Nis g a'a decide to proceed, and we'd move on.

[ Page 11840 ]

M. de Jong: There are two things that flow from that. I thought I heard the minister say that the estimated value was zero, and I wasn't sure what he was referring to when he said that.

Hon. G. Wilson: With the exception of the school in Gitwinksihlkw, which is fairly new, and in which there is still value, the other three schools and the teacherages have been . . . . The capital depreciation is to zero.

M. de Jong: Does that answer include . . . ? My recollection of my visits to the area . . . . There are schools in Greenville, at least, and I think one other village. There are schools that are occupied now and schools that are unoccupied. Does the minister's answer relate to both of those categories of facilities?

Hon. G. Wilson: Well, there is a school in every village, but I'm not aware of schools that are unoccupied. So it does include those schools.

M. de Jong: The other thing the minister said was that at the time the transfer of one of those assets takes place, there would be an evaluation. That's interesting. I'm wondering why that would be. What is the significance of that evaluation taking place? For example, if the police station is going to be transferred, what flows from having done that evaluation? Is there consideration flowing, and is there a reason for doing that?

[1505]

Hon. G. Wilson: I'm tempted to say that there is no particular value to it. You asked the question, and I'm trying to find you an answer. When and if the new schools are to be built or a new police station is to be built, there will have to be a capital valuation placed on the structure, there will have to be negotiation, and we'll have to move on.

M. de Jong: Well, if I didn't hear the minister correctly the first time, I apologize. But what he says now isn't what he said earlier. All we're trying to establish is a process by which assets flow -- assets transfer from the Crown in the right of the province of British Columbia to another agency -- and if the Deputy Premier finds that a meaningless topic to explore during the course of this debate, well, too bad for him.

Interjection.

M. de Jong: I'm sorry; I didn't hear the Deputy Premier.

I think that my colleague may have a question with respect to

section 26.

G. Plant: First of all, to follow up on one aspect of the discussion that has just been held, some of the assets that are being discussed may sit on what is now provincial Crown land or land held by a provincial Crown agency. Some of those assets may sit on what is now reserve land. We're talking about a range of buildings including the police station and the schools. It may be that they're all on what is now reserve land. But in the discussion about the value of assets that has been held to this point, there has been discussion . . . . It has mainly been talked about in terms of a value, or depreciated value, of buildings.

I want to ask about the land and where that fits in terms of these transfers. It may be that all of the land in question is already Nis g a'a reserve land, and there just simply are other . . . . The Crown has forms of tenure in respect of the buildings on Nis g a'a reserve lands. That's all by way of

preamble. What I really want to know is whether, in looking at the figure that the provincial Crown assigns as the value of the land that's being transferred to the Nis g a'a in this agreement -- which is the $106.7 million figure -- any part of that $106.7 million represents the value of any of the land associated with any of the assets in paragraph 28(b).

Hon. G. Wilson: The answer to that is no.

G. Plant: Why?

Hon. G. Wilson: Because there are no improvements on any of the Crown land that's being transferred. They sit on reserve lands.

G. Plant: All of the assets which are the subject matter of paragraph 28(b), insofar as they consist of buildings, therefore sit on what is now Nis g a'a reserve land.

Hon. G. Wilson: Yes, that's right.

G. Plant: I want to ask a question that flows out of the relationship between paragraph 26 and paragraph 4.

The minister will recall that paragraph 4 says: "The exercise of Nis g a'a Government jurisdiction and authority set out in this Agreement will evolve over time." Paragraph 26 is a statement of acknowledgment by the parties about the desirability that "the exercise of Nis g a'a government authority be introduced in an effective and orderly manner." I take it, then, that paragraphs 26, 27, 28 and 29 are all part of the concept that it's open to the Nis g a'a to draw down powers in the exercise of powers over time. Perhaps I could get the minister's confirmation that that's the basic intention here.

[1510]

Hon. U. Dosanjh: Yes.

G. Plant: Let me say this. I can understand the public policy rationale, from both the Nis g a'a and the province's perspective, in permitting some flexibility around the way in which the Nis g a'a government will develop over time. I think I can also understand the rationale that lies behind the idea of providing that Nis g a'a government powers are permissive, because it gives the Nis g a'a the option to decide whether, in effect, they're going to continue to rely on the existing legislation of either the province or Canada and see whether that does or doesn't work for them and, at some point in the future, make decisions one way or the other about that.

To get a sense of the legal limits, if you will, of this, providing that the specific requirements in paragraphs 27, 28 and the first half of 29 were fulfilled, is there any bar to the Nis g a'a essentially drawing down all of their government powers virtually immediately?

Hon. U. Dosanjh: No.

M. de Jong: I have some questions relating to sections 30 and 31. I will say that I don't presume we will spend as much

[ Page 11841 ]

time on this as we did on sections 19 through 23, but I think this is one of those sections in the agreement that is important from the perspective of determining whether or not the government and proponents of the treaty are correct when they suggest that there is nothing new being created here -- no form of government that isn't presently known. When one considers the onerous obligation that is being placed upon the government of British Columbia with respect to its own ability to enact laws on behalf of the citizens of British Columbia, I think you begin to get a better understanding of the differences that distinguish the Nis g a'a government from any other form of local government.

I think if we could start there, by asking the government -- whichever minister is going to handle these questions -- to provide some manner of explanation or a description of where else in Canada and in British Columbia that obligation to consult prior to amending or enacting laws in areas that fall exclusively within the provincial jurisdiction exists. Does it exist, for example, with respect to any other municipal entity in the province of British Columbia? I'm not aware that it does. But if the government is of a view that it does and that this is nothing more or less than an obligation it has in other areas, then I'm interested in hearing that.

Hon. U. Dosanjh: I can tell you from my experience -- and I could by wrong, but I don't believe I am -- that since my time here, for the last seven to eight years, I have never seen one amendment to the Vancouver Charter without the request first coming from the city of Vancouver or the city of Vancouver being heavily consulted and agreeing to a charter amendment. That may not be embedded in law, but there is a practice and a convention. I think that when one wants to look at comparisons, one has to keep in mind that sometimes the practice has almost the status of a legal convention in relations with municipalities and the like.

[1515]

M. de Jong: Surely, though, the Attorney General would agree that this is something far different, that this is an obligation that extends far beyond amendments to, for example, the Vancouver Charter. If we refer to that as the enabling document for the establishment and maintenance of the city of Vancouver, I think it makes equal sense to say that if either party presumed to want to amend this document, not only would notice be required but so would the agreement of the other parties.

This is an obligation that I think it can be fairly said extends far beyond that. If an amendment is going to be made to an existing statute that in any way, shape or form can be said by the Nis g a'a themselves to somehow impact on them, an obligation exists. That's a far different thing than the convention or the protocol that the Attorney General has referred to. Of course, it's not a protocol in this case; it is a legal constitutional obligation. I think that's far different.

Hon. U. Dosanjh: I think that this obligation in paragraph 30 requires that all of the four conditions be met before the obligation to consult arises. Those obligations are enumerated in 30(a), (b), (

c) and (d). Paragraph (

d) says: "The proposed amendment would result in the Nis g a'a law ceasing to be valid." I think it's only appropriate, if we negotiate an agreement between the federal government, the provincial government and the Nis g a'a, to give them the lawmaking authority and that if we're going to render their law invalid, we at least consult with them. There's no bar to doing that.

M. de Jong: The Attorney General will note that I haven't said that under the regime, the model, that's been adopted here, what appears here doesn't make sense. I may have difficulty with the model itself. But the government, having made the decision to adopt it, might . . . . The Attorney General asks: "What is the question?"

G. Plant: God, that's tiresome.

M. de Jong: Yeah.

Interjection.

G. Plant: I'm sorry.

M. de Jong: We hear constantly from the government . . . . We had this discussion with the Attorney General yesterday, when he said to us that it's not really municipal government. That's a political term, not a legal term. Here we are back again, exploring just to what extent local government that is being created here equates with traditional forms of self-government.

The question that I'm asking, I suppose, is: how can one make that argument on the one hand and on the other hand recognize that in creating this model of self-government, a significant new burden is being placed on the provincial government, which doesn't exist with respect to any other local government in the province? Surely that is a distinguishing feature that the Attorney General will recognize as distinguishing this from what his own government has termed a municipal-style government.

Hon. U. Dosanjh: It's not an onerous burden. It is appropriate that there be provisions that allow for some consultation, where legitimately made laws by Nis g a'a government can be rendered null and void, although they've been granted the power by way of negotiations in the treaty to make those laws. It makes immense sense to allow for that consultation, and that's all we're doing.

[1520]

G. Plant: I think the wisdom of the practicality of consulting is not, for me, a significant question in this context, although I have made the point -- and still hold to it -- that there's an awful lot of consultation obligations built into this document. The cumulative total of all those consultation obligations may be somewhere between impractical and burdensome. But it doesn't strike me as being wrongheaded for the province to say, as a practical matter, that there should be some consultation here. I also am mindful of the fact that the circumstances in which that obligation arises are carefully circumscribed in paragraphs (

a) through (d).

I don't think Canada has undertaken the same obligation. Perhaps I could ask the Attorney General if I'm correct in that assumption.

Hon. U. Dosanjh: The hon. member is correct. Just for his information, some of the areas of consultation would be forestry; then law re creation of estates or interests in

chapter 11, paragraph 44 or 46; then paragraph 72, "Traffic and

[ Page 11842 ]

Transportation"; paragraph 89, "Child and Family Services"; paragraph 96, "Adoption"; paragraph 100, "Pre-school to Grade 12 Education"; and paragraph 103, "Post-Secondary Education." Those are all areas where we are agreeing, by way of this tripartite agreement, that they would have some jurisdiction. It's only fair, if we're going to deal with those issues in any significant way to alter that, that we consult with them.

G. Plant: Well, let me just explore the issue of Canada for a moment. I can't identify, off the top of my head, similar situations that might exist in respect of federal authority -- federal paramountcy, for want of a better term. The list may be a very short one. But is there logic, from the province's perspective, in the province having accepted this constitutional obligation in circumstances where Canada has not?

Hon. U. Dosanjh: I think the areas that I discussed or indicated are provincial areas, and I'm given to understand that none of the areas where the Nis g a'a are to meet certain standards relate to federal issues.

G. Plant: That really is the point that emerges from paragraph 30(c). That's the distinguishing characteristic. It's that the issue of validity turns on a comparison between the two laws.

Hon. U. Dosanjh: Yes.

[1525]

G. Plant: Maybe I should say that I am mindful that the circumstances in which paragraph 30 will operate have been narrowly circumscribed by the four subclauses. Nonetheless, I think the paragraph raises some important issues of principle.

I'm not familiar with any other instance where this obligation exists at what might be called a constitutional level. It occurs to me, off the top of my head -- which is always a dangerous place for me to find any ideas -- that there are places within the constitution of Canada where the federal government exercises authority. Then the effect is to displace provincial legislation, because of the operation of the rules of paramountcy. As a general observation, I can't think of any obligation on the part of Canada to consult with British Columbia before Canada takes command of a particular field of jurisdiction.

I may be wrong; there certainly may be instances where that is not so. But the notion that a party which has, arguably, paramountcy is obliged, as a condition precedent to the exercise of that, to consult with the party whose interests are being affected -- with the level of government whose interests are being affected -- strikes me as being novel. Now, I may be wrong, and there may be well-established instances. There may in fact be a principle of constitutional law that I've just forgotten, which says that the federal government is obliged to consult with the provincial government before it overrides provincial laws.

I'm going to leave that point with the Attorney General and add an additional point. Another constitutional term that enters the fray here is the idea of parliamentary sovereignty and the fact that we in this Legislature are sovereign within the areas of jurisdiction that are assigned to the province under the constitution of Canada. From one perspective, this paragraph might be viewed as a fetter on that sovereignty. If the Attorney General agrees, I'm sure he'll say so; and if he disagrees, I'm sure he'll explain why.

Hon. U. Dosanjh: We disagree. I believe that's one of the issues that is being argued, directly or indirectly, before the courts.

G. Plant: I take it that the fact that the issue is being argued is regarded by the Attorney General as a reason not to explain the provincial approach to this at this point.

Hon. U. Dosanjh: We disagree that this is a fetter upon our jurisdiction. It obviously imposes an obligation which has been voluntarily entered into. Under very narrow circumstances that obligation arises. I think that under the circumstances that's appropriate, but it is not a fetter upon our jurisdiction.

G. Plant: Just for comparison purposes, can the Attorney General list off the first half-dozen or so other places in the law -- the first half-dozen examples that occur to him -- where the province has constitutionally agreed that it will consult with a body before enacting legislation?

Hon. U. Dosanjh: We are dealing with the treaty that we've negotiated after years of discussions. As to whether or not those areas exist, the hon. member can do the research as well as I can.

[1530]

G. Plant: When the number rises above zero, I'll be sure to give the minister a call.

I want to move forward to paragraph 31, although some of my colleagues may have more questions about paragraph 30. Paragraph 31 fleshes out the possible dimensions of consultation. It reads: "Consultations under paragraph 30 may include: (

a) the nature and purpose of the proposed amendment to the provincial law . . . . " There are rules of parliamentary privilege around when things that are going to become bills can become public. Does the government see this clause in

chapter 11 as opening up a sort of new body of rules around parliamentary privilege or creating special exceptions? Or does it see this as a process that it would intend to follow within the scope of the existing principles of privilege?

Hon. U. Dosanjh: The latter.

G. Plant: To give the Attorney General the opportunity I'm sure he wants . . . . The kind of consultations talked about here are not dissimilar from the kinds of consultations which the government now occasionally undertakes with people who are sometimes described as stakeholders and other interested members of the public, in respect of proposed changes to legislation.

Hon. U. Dosanjh: Correct.

K. Krueger: If the Nis g a'a were to write a Nis g a'a labour code, how would

section 30 apply? Would the government of British Columbia then be obliged to consult with the Nis g a'a Lisims government before amending the provincial Labour Code?

Hon. G. Wilson: I think we tried to communicate to this member last time that they can't write a labour code.

K. Krueger: With respect, certainly the Attorney General stated that opinion last night. The Minister of Aboriginal

[ Page 11843 ]

Affairs said that

section 67 puts a bar of sorts in the way of the Nis g a'a writing their own labour law. When we get to 67 -- we can flip to it for a moment now, if you like -- it doesn't refer to

section 30, it only refers to paragraphs 64 to 66. There are a host of other sections in this

chapter which will, arguably, bear on the Nis g a'a's right to create their own labour legislation. We'll be coming up to one of those in paragraph 33, for example. Certainly Chief Manny Jules of the Kamloops Indian band would argue that labour law falls within aboriginal government and aboriginal culture. Referring back, for example, to paragraph 27, we don't see labour included in the list of issues with regard to which the Nis g a'a are obliged to even give notice to Canada and British Columbia of their intended exercise of authority.

I submit to the Minister of Aboriginal Affairs that it could be argued that sections 1, 4, 5, 6, 7, 8, 9 -- with subsections (b), (

c) and (d) -- 27, 30 -- this one -- 33, 34, 35, 41, 43, 47 to 49, 53(a), 55, 59 to 61, 63, 126, 127 and 128 all bear on the Nis g a'a's right to write labour legislation. If the minister would just allow for a moment -- even if he has to imagine it -- that the Nis g a'a, under the provisions of this treaty, will have the right to create their own labour code, would he then explain how

section 30 will be administered?

Hon. G. Wilson: I hope the members opposite will take us up on our offer to take some extended hours into the evenings, if this is the level of questioning they're coming forward with.

They do not have the power, and 67 says that for greater certainty they do not have the power. They will not have the power to put in place a labour code, no matter what the member opposite may think or like to argue.

[1535]

K. Krueger: I would again point out to the minister that

section 67 pertains only to paragraphs 64 to 66 -- none of the ones I just listed.

Hon. G. Wilson: The reason I didn't go back through the list of sections is because they are irrelevant to the question. They do not have the power; and for greater certainty, 67 puts an even further restriction on it.

K. Krueger: Would the minister then identify to me the part of this document, other than

section 67, which denies the Nis g a'a the power to write labour legislation? Last evening the Attorney General was only able to identify

section 67.

Hon. U. Dosanjh: I thought we understood the premise of this discussion and of the treaty: the Nis g a'a would have the powers they have been granted by agreement of the three parties. If there is no specific, positive power agreed upon with respect to labour issues, they don't have the power. As my colleague the hon. Minister of Aboriginal Affairs has said, for greater certainty and comfort, one can look to

section 67, which is a kind of bar to that kind of power. You have to have the power to really need a bar, but they don't have the power.

K. Krueger: How, then, would the Attorney General respond to Chief Manny Jules -- and presumably many other chiefs -- who would argue that whether or not they specifically find a power referred to as labour in this treaty, they view culture as a category that includes labour? Chief Jules will tell the Attorney General, for example -- if he cares to ask -- that it's a matter of great concern to the Kamloops Indian band and the Shuswaps in general that strikes not occur on their reserves and that they have a labour code that prohibits strikes, because for generations it would create problems in their community and with their people.

Hon. U. Dosanjh: I think that's why, for all of the reasons that the member is raising this issue, it's important to enter into modern treaties throughout British Columbia. I would urge the members opposite to pass this treaty so that we can move on to do some more.

K. Krueger: With respect, this treaty is going to create problems for people who choose to be represented by unions or people who work on Nis g a'a lands. Of course, it's not just self-government we're talking about, although the government tends to refer to this as self-government. It's government of people who live and work on Nis g a'a lands.

It's not clear at all in this treaty how the B.C. Labour Code will apply to Nis g a'a territory or to people living or working on Nis g a'a lands. Where does the treaty provide any certainty at all on that question? This may be the first modern-day treaty, as the Attorney General refers to it. We're identifying many areas where this treaty is deficient, and this, I submit, is another one.

Hon. U. Dosanjh: I would refer the hon. member to "General Provisions," paragraph 13, to give him further satisfaction on the issues that he raises. It says -- and I think I said this yesterday as well: "Federal and provincial laws apply to the Nis g a'a Nation, Nis g a'a Villages, Nis g a'a Institutions, Nis g a'a Corporations, Nis g a'a citizens, Nis g a'a Lands and Nis g a'a Fee Simple Lands." Then it has some qualifications. I think it's important to remember that those laws apply, unless this treaty says to the contrary.

[1540]

K. Krueger: Assuming that the term "Nis g a'a public institution" could include a Nis g a'a labour relations board, looking ahead to paragraph 36, we see that Nis g a'a law will prevail to the extent of any inconsistency or conflict with federal or provincial law. Again, it seems to me that the general provision that the Attorney General just quoted isn't helpful at all on these questions.

Hon. G. Wilson: There are many very valid issues that need to be debated in this committee stage. The government has said that after the 22nd of this month, we intend to get on with other very pressing business in British Columbia. We have extended an offer to the members opposite that if they would like to have some extended evening hours to deal with those legitimate issues, we're ready to do so.

Frankly, I find it incredible that we would waste any further time on the speculations of the member for Kamloops-North Thompson on the implementation of a labour code, having been told repeatedly that it cannot happen. Regardless

[ Page 11844 ]

of the imagination -- creative as it might be -- of the member for Kamloops-North Thompson, it isn't even in the cards. Now, let's talk about something that's legitimate.

G. Plant: I guess I'm one of those lucky British Columbians . . . . I've had the experience where this government has repeatedly told me a number of things that have subsequently been revealed to be not something I'd certainly like to have to take to a bank.

While acknowledging that there is a position on the part of the government with respect to the application of the Labour Code, I'm not intending to pursue the issue more than just one further observation. I point out that, first of all, paragraph 13 of the general provisions

chapter actually needs to be read entirely before you get the comfort that the government wants to get from it. Obviously, if there's a conflict or inconsistency between the agreement and the provisions of any federal or provincial law, this agreement prevails. There are a whole host of other rules about paramountcy and conflict and all of that, and we'll see in the fullness of time how they work out and the kinds of arguments that people will make. Some of those arguments, frankly, are going to look like arguments that everyone in this chamber would probably scoff at as being beyond the pale. Other arguments might actually have quite a significant patina of reasonableness about them.

Somewhere between those two points, for example, would be the argument that the power conferred upon Nis g a'a Lisims government in paragraph 34(

b) to make laws in respect of the remuneration of employees of Nis g a'a institutions is as wide-open a door to making a labour code or some kind of employment standards law as you might want to think. On the other hand, others may think that's not a very good argument at all. A lot of people think that the whole issue of how they're paid is pretty closely tied to the conditions of work and that those things may get argued.

I have to say, when I say that, that I guess I've sat in my office in my previous life as a lawyer and seen all those kinds of arguments. And I think it's actually legitimate to pursue some of those issues as we go through this, because that's the way we do test the extent of the government's efforts on behalf of the people of B.C. to ensure that there is some certainty here. We're all, I guess, at the mercy of the language that is used in the document.

[1545]

I've asked all the questions I need to ask about 30 and 31, which takes us to the broad subject of legislative jurisdiction and authority. I expect that as we go through this, there may be questions that come from particular critics who have particular responsibility for the areas that are covered here.

But dealing first with the general provisions, there's a lot of disagreement that I think is intended to serve the role of providing further assurances and perhaps to make clear things that might not otherwise be as clear. And sometimes I'm not sure whether we're in one of those clauses or whether we're in a clause that's intended to do something really substantive. Paragraph 33 says that Nis g a'a Lisims government and Nis g a'a village governments, respectively, have the principal authority in respect of certain subject matters. What is the relationship between that provision and the specific grants of lawmaking power, for example, that follow after it?

Hon. G. Wilson: This is really just a generalization of what is fleshed out in the specifics; beyond that, there is no relationship.

G. Plant: The statement that the Nis g a'a government and Nis g a'a village governments have principal authority suggests that somebody else might have secondary or less-than-principal authority -- that is, it tends to suggest the relationship.

I take it that the relationships contemplated here are the relationships, on the one hand, between the Nis g a'a government institutions and the lawmaking authority of the province or the federal government that is expressly referred to and dealt with in the specific provisions that follow, and that nothing in paragraph 33 is intended to really alter what the specific clauses say about the relationships that exist in respect of those particular subject matters.

Hon. G. Wilson: Yes, that is correct.

G. Plant: We've talked about the Nis g a'a constitution. Paragraph 34 is a grant of lawmaking power, if you will, to the Nis g a'a Lisims government "in respect of the administration, management and operation of Nis g a'a Government," and then there's a bunch of detailed aspects to that. I take it that the authority for the Nis g a'a Lisims government to make laws in respect of the administration of the Nis g a'a government finds its home here and, as to the Nis g a'a village government, in paragraph 35. The constitution and the rules around what's to be in the constitution act as constraints around the content of those laws. Is that a relatively fair statement of the way the thing works?

Hon. G. Wilson: Yes, I think that's a fair

summary.

[1550]

G. Plant: We have talked about the idea of urban locals and Nis g a'a villages and the changes that can be made to either the name, the identity or even the existence of Nis g a'a villages and urban locals. All of the powers of the Nis g a'a Lisims government in relation to Nis g a'a villages on Nis g a'a lands and Nis g a'a urban locals flow from paragraph 37. Is that correct?

Hon. G. Wilson: The answer is yes.

G. Plant: One of the challenges that I have certainly faced in trying to read this agreement and make sense of it is to follow the map of paramountcy between the agreement itself and Nis g a'a law and other entities that are implicated in that, which may be the federal or provincial government and others.

Paragraph 32 says that if there's "an inconsistency or conflict between this Agreement and the provisions of any Nis g a'a law, this Agreement prevails." Paragraph 36 says that if there's "an inconsistency or conflict between a Nis g a'a law . . . and a federal or provincial law, the Nis g a'a law prevails to the extent of the inconsistency or conflict."

I'm not going to impose upon the minister to follow through every single chain of paramountcy that exists in this agreement, and there are a number of them. I should say that we are bound to go through a few of them. But I do want to ask the minister: what is the way, in plain language terms, that

[ Page 11845 ]

these two clauses work in the context of the lawmaking authority "in respect of the administration, management and operation of Nis g a'a Government"?

Hon. G. Wilson: The distinction is that 32 parallels

section 13 of the "General Provisions,"

whereas 34 and 35 obviously tie . . . the Nis g a'a law with respect to existing provincial and federal laws.

G. Plant: I suppose another way of putting that is to say that if there's a conflict between a Nis g a'a law, under paragraphs 34 and 35, and some federal or provincial law, the Nis g a'a law prevails. But the agreement would trump Nis g a'a law if there were a conflict there. If that's correct, it would essentially support the view that the agreement is the home of all homes. I mean, it's the source of all of this. When all else fails, look at the agreement.

Hon. G. Wilson: Yes, that's generally what's intended.

[1555]

I understand that the minister may say: "Well, that kind of an example isn't a good one, because they couldn't make that law." If we could forgive that criticism for a moment, am I right that the relationship between 34(

b) and 36 would, in that case, be that Nis g a'a law would prevail to the extent of the inconsistency or conflict between, say, the common law with respect to contracts of employment and the Nis g a'a law with respect to specific contracts of employment for employees of Nis g a'a institutions?

Hon. G. Wilson: Well, our view is that they would not have the ability to do that, because it would be labour law. In the event that they did, that would be covered off under

section 53 of the general provisions with respect to incidental impact, which is the reason they would not be able to do it.

G. Plant: So paragraph 53 is what happens if a Nis g a'a law has an incidental impact on a subject matter in respect of which Nis g a'a government does not have jurisdiction to make laws. And then it goes on to speak about resolving inconsistencies. The answer to my question in terms of explaining the flow chart, if you will, turned on a characterization of the nature of the Nis g a'a law in question. It was determined, in considering the answer to my question, that it was the sort of law that fell within paragraph 53, so the rules that apply there apply to it. Is that correct?

Hon. G. Wilson: I think that to clarify, in the first instance we would deem that they have no authority. If it gets beyond that, then 53 applies with respect to incidental impact.

G. Plant: For further clarification, the province's first response to my hypothesis is to say that a Nis g a'a law that purported to deal with contracts of employment for employees of Nis g a'a public institutions in a way that altered the common law with respect to reasonable notice for dismissal is a law that lies outside the power of Nis g a'a government to make. That's the first answer.

If that's wrong, then the second alternative answer is that it would be the kind of law that paragraph 53 is all about. Is that a fair restatement of what the minister said?

[1600]

Hon. G. Wilson: Yes, that's a fair restatement.

G. Plant: To take a second hypothetical example, the Nis g a'a government makes a law that deals with the remuneration of the employees and appointees of Nis g a'a institutions. Well, I'm not sure how to . . . . I was going to give this example. Let's just say that the Nis g a'a law said that employees and appointees of Nis g a'a institutions were, as a general matter, to be paid in a manner equivalent to officials, employees and appointees of provincial government institutions performing similar work for similar value, or something like that. I suppose then there would be no inconsistency, and therefore the clauses tracking this would not come into effect.

I guess the question would be whether the government has in mind examples of Nis g a'a laws that could conceivably be inconsistent with federal or provincial laws within the general scope of paragraphs 34 and 35. Maybe I could ask the minister if there are examples of potential Nis g a'a laws that could raise the issue of a conflict and then ask him to explain how it would be resolved.

Hon. G. Wilson: We're having a hard time giving a specific answer, because it's a highly speculative question. There may be some variation or differences, but the scenario painted by the member opposite is really highly speculative, and it's difficult to give a concrete answer.

G. Plant: Well, it may be highly speculative, but it's provided for in the agreement, so I think it's actually worth attempting to see how the thing is intended to work. It may be that the government's answer is to say that as a matter of public policy, this issue has been dealt with in the following way. Here is the scope of Nis g a'a lawmaking authority in relation to the administration of its institutions.

And if anyone were to ever come along and argue that there were some conflict between those laws and the provincial or federal laws in relation to such institutions, from the province's perspective, the Nis g a'a law should trump. It's good public policy, recognizing the objectives of the agreement, to ensure that Nis g a'a government has that degree of autonomy and security and that they're not going to be having to engage in dispute resolution around whether or not their laws around public administration within the scope of 34 and 35 are different from provincial or federal laws.

The approach taken here is to say: "Well, that issue, frankly, just isn't going to arise, because the Nis g a'a should be able to make their own laws around this, and their laws should prevail -- and that's the end of it."

[E. Gillespie in the chair.]

Hon. G. Wilson: Well, that was what was agreed to in general, and in general terms, that's what the Crown believes is appropriate.

[ Page 11846 ]

[1605]

M. de Jong: Dealing now with sections 39 and 40, "Nis g a'a Citizenship," I think the issue that the drafters were confronted with was how to fit the notion of Nis g a'a citizenship and all of the rights and duties that that implies within the broader concept of Canadian citizenship, as we know that term. Maybe I can begin here, because this is one of those sections that gives rise to concerns -- some of which are unwarranted; maybe many of which are unwarranted -- because of some of the terminology that's used. Was there any thought given to speaking, instead, of Nis g a'a membership rather than citizenship?

For reasons we'll explore here briefly, that term carries with it meanings in terms of international law, in terms of what it means to people from a practical point of view. Why use the word "citizenship"?

Hon. U. Dosanjh: I don't believe that other terms were discussed at length, or at all, because the Nis g a'a indicated that this was an appropriate term. It was desirable for them, it did not detract from the concept or the powers and privileges of Canadian citizenship, and it was felt appropriate by the parties to use the term.

M. de Jong: And I think that's what the two sections are about -- what the Attorney General said. It's to try and ensure that the notion of Nis g a'a citizenship doesn't detract from the broader concept of Canadian citizenship. I guess I just want to explore briefly whether the provisions achieve that objective.

One of the things that I say to people is that as a Canadian citizen, one of the fundamental rights you have is to be in Canada. If you show up at the border as a Canadian citizen, you can be arrested and you can be detained, but you can't be turned away. That is a fundamental right you have as a Canadian: to be in this country. Does that same concept hold true for a Nis g a'a citizen, within the meaning of this treaty? Does a Nis g a'a citizen have the right to be on Nis g a'a land?

Hon. U. Dosanjh: The answer to that simple question is yes, and it's in paragraph 10 of

chapter 2 of the constitution. But coupled with that, one must consider that that does not confer or deny the rights of entry into Canada. If you are not a Canadian citizen and somehow you happen to be a Nis g a'a citizen, that will not give you the right to come into Canada. And if you are in Canada illegally, you may have been declared a Nis g a'a citizen, but you will be deported.

M. de Jong: So to follow through . . . . I think the Attorney General understands where I'm going with the question: to explore how that operates.

Hon. U. Dosanjh: We've done this before.

M. de Jong: Well, we have done it once before -- not with respect to the treaty itself. I think it was with respect to . . . .

Interjection.

M. de Jong: Well, the agreement-in-principle is the discussion that I think we had in estimates with the minister.

Interjection.

M. de Jong: Well, my memory is apparently much worse than the Attorney General's, so we will just take a moment to help refresh my memory.

We have an individual who claims rights as a Nis g a'a citizen, who is on Nis g a'a lands and claims, pursuant to the provisions of this treaty and the Nis g a'a constitution, the right to remain on those Nis g a'a lands. Explain to me -- through you, hon. Chair, to the Attorney General -- the jurisdiction or the authority that exists for Canadian law enforcement officials to go onto Nis g a'a lands to remove an individual who Canadian authorities say no longer has the right to be in Canada and to be in British Columbia.

[1610]

Hon. U. Dosanjh: Hon. Chair, that would be, I understand, the

chapter entitled "Access," paragraph 15 -- access to law enforcement authorities to enforce the law.

M. de Jong: If that provides the access -- understood. The authority, however, to act on the desire to have that person extradited -- I take it that the Attorney General would say -- exists within sections 39 and 40. Yet I see an inconsistency between the rights that are granted to a Nis g a'a citizen, pursuant to the Nis g a'a constitution and this treaty, and what is set out in 39(

a) and 39(b), and no authority for the proposition that 39(

a) takes precedence.

Hon. U. Dosanjh: One has to read 39 and 40 with paragraph 15 of the access

chapter and paragraph 13 of the general provisions. Then one gets the full picture of the federal and provincial laws applying, access being available -- the right to enforce those laws.

M. de Jong: When I read paragraph 40 in particular, I see the paramountcy provisions as they apply to Nis g a'a law and its authority with respect to the citizenship provisions. I have heard the argument made -- and will make it for the Attorney General to respond to today -- that in the scenario we've described, paramount authority over the rights of citizenship could operate in a way that would allow for that Nis g a'a citizen to say: "No, I'm staying on Nis g a'a lands. That is a right that takes precedence over the federal authority to have me removed."

Hon. U. Dosanjh: Not true.

M. de Jong: I think my colleague from Richmond has some questions relating to the sections on culture and language.

L. Reid: I want to put some comment on the record this afternoon. When we reach the sections regarding adoption, foster families and all of those issues, I want to be absolutely clear that the best interests of the child will always be the paramount consideration. That has not been the case in a number of cases that this ministry and this Attorney will certainly be familiar with. That has not given me comfort that this particular agreement will somehow be different for children in British Columbia.

So if I could ask the Attorney General, in the absence of the minister, to comment on the commitment of this govern

[ Page 11847 ]

ment in terms of language and culture as a defining factor in the placement of a child in the best interests of a child, that will certainly give me some comfort as we lead into sections that are more specific to that reference.

[1615]

Hon. U. Dosanjh: I think that one has to look at paragraphs 89, 90 and 96 of this chapter. Paragraph 89 talks about the government's ability to "make laws in respect of child and family services . . . provided that those laws include standards comparable to provincial standards intended to ensure the safety and well-being of children . . . . " And 90, I believe, says that if there is an emergency in which we believe that a child is at risk, British Columbia can enter and deal with those issues. And 96 deals with adoption, that adoption being in the best interests of the child.

I think it's important to look at all of these issues or sections together. When one does that, then it becomes pretty clear -- crystal-clear -- that the general law applying to children with respect to these kinds of issues applies in the Nis g a'a treaty as well.

L. Reid: Frankly, it's not clear that the implementation will match the language. There is tremendous controversy around the sections which talk about "those laws include standards comparable to provincial standards," when in fact there is no known appeal process. I believe that this document will remove children from access to the Child and Family Review Board, to the appeal process, to the children's commissioner -- to all of those things. If the Attorney has a different

interpretation of those subsequent sections, I can rest a bit easier in dealing with the "Culture and Language" section.

Indeed, to suggest that simple statement, "There shall be standards," alone doesn't give me comfort. That's because I think the standard that we will come to is very similar to where we are today around Spallumcheen, which certainly does not allow any kind of outside appeal process, outside recourse, even for those children who might wish to have a different delivery system in place for them. There is no access to any other intervention -- absolutely none.

The reason, again, that I am commenting at

section 41 under "Culture and Language" is my fear that when we debate through sections 89, 90 and 91, those indeed will be the only determining criteria in terms of placement and adoption. That has certainly been where this government was in the Murphy case, as an example. Culture and language were the deciding factors that allowed the ministry to engage in a lengthy legal battle with that family. They were the only criteria that launched the ministry into that battle. So for the Attorney to somehow suggest today that because it states standards in here, that, in effect, won't happen . . . .

I'll need a little more comfort in terms of whether or not my rendering of this is accurate. I believe that the culture and language

section is critical for future placements and future adoptions in this province.

Hon. U. Dosanjh: I'm somewhat puzzled by the hon. member's relating of sections 41, 42 and 43 to the sections with respect to child apprehensions or adoptions and the like. It's important to recognize that these are general sections that deal with the issues of culture and language.

In terms of the other sections, when we come to those I'd be happy to explain to the hon. member that if those standards are not comparable to our standards, their laws are invalid and ours would apply. And if there aren't appropriate mechanisms for review and appeal, obviously they would not be comparable.

I go back to the original argument that I made to the other colleagues on the opposite side. They have struggled to have this treaty made after such a long time. They're not doing it to ensure that they don't look after their children. We haven't done such a great job of looking after their children.

[1620]

L. Reid: I too look forward to having a very specific debate with the Attorney on this question at future sections. But in terms of the relationship of

section 41, "Culture and Language," to future discussions . . . . If indeed those laws to preserve, promote, and develop Nis g a'a culture and Nis g a'a language have yet to be made, have to be set, I need to know at this juncture what carryover, if you will, that will have in terms of defining criteria for adoption, as an example. My fear is that even though the Attorney suggests that standards will be in place, my understanding is that children will be denied access to the child advocate, to the children's commissioner -- to all of those things.

We are somehow suggesting that comparable standards will be crafted and that comparable delivery mechanisms will be put in place, so that the same avenues remain open to them. I remain unconvinced. I speak today only out of concern for aboriginal children. I think the Attorney is correct: we have not done all that we could have. But before I can vote and move forward on this section, I have to know that somehow this is superior to what we have today.

What I see is that the door will be left open for culture and language to be the only defining criteria for placement and that the best interests of the child will somehow fall below that. That is the speculation in the community today. It's the fear of many people who work in the Ministry of Social Services and deal directly with aboriginal children. They need to believe -- and we're looking to you to convince us -- that somehow this will be a better scenario for young people in this province.

Hon. U. Dosanjh: For the hon. member to jump from 41, 42, 43 . . . . The conclusions that she jumps to . . . . I'm surprised, actually, that the hon. member would do that. Paragraphs 41, 42, 43 are general provisions with respect to preservation, promotion and development of the culture and language, which are appropriate.

The

section dealing with adoption and child and family services is very clear, and 96, if I may read, says:

"Nis g a'a Lisims Government may make laws in respect of the adoption of Nis g a'a children, provided that those laws:

"a. expressly provide that the best interests of the child be the paramount consideration in determining whether an adoption will take place; and

"b. require Nis g a'a Lisims Government to provide British Columbia and Canada with records of all adoptions occurring under Nis g a'a laws."

You couldn't have language stronger than that. That proviso implies that if they don't do that, the law would be invalid.

M. de Jong: Let's have a look at this

section from, well, not really a different perspective, because I think this is what my colleague is also referring to. This section, which bestows

[ Page 11848 ]

paramount authority on Nis g a'a government with respect to culture and language . . . . I think that many people would say -- and I heard this from members of the government in the public debate: "Well, that just makes sense. Why wouldn't matters of language and culture . . . ? " In many people's minds, these are the essence of what self-government might be about, in terms of preserving that cultural identity and that linguistic heritage. But the point is this. There is no shortage of cases where clever lawyers and litigants have tried to wrap their case in the cultural argument.

If you can say that this function of government relates to a matter of culture, we then attract that element of paramountcy. I think that one of the issues . . . .

[1625]

Interjection.

M. de Jong: The Attorney General wants me to stop because he gets the point, and I'm almost inclined to . . . .

Hon. U. Dosanjh: It's a problem amongst lawyers.

M. de Jong: A problem amongst lawyers, he says.

But I think he does understand the point. What I'm looking for, and what my colleague from Richmond is looking for with respect to the specific issue that she is dealing with, is: how do we acquire some degree of certainty and some degree of comfort that the term "culture" won't be steadily expanded -- that definition -- to capture all sorts of things that the government may not have contemplated when it agreed to bestow paramount authority on the Nis g a'a government by virtue of these sections?

Hon. U. Dosanjh: I think the standard that would apply to the

interpretation and understanding of those laws that may be made by the Nis g a'a would be: what does this law relate to? What is it, in pith and substance? That's the general standard and test that's applied in the courts in Canada. If it does relate, in pith and substance, to culture, so be it. If it really relates to something else and culture is being used as a tool to achieve an objective which is otherwise both undesirable and inappropriate, that law would be struck down. It would be invalid.

M. de Jong: If we go back to the example that my colleague from Richmond was referring to, we have heard very genuine arguments -- and I say this sincerely -- from aboriginal groups that the notion of child custody goes to the heart of aboriginal culture. I don't think it would be a disingenuous argument on their part to say that in developing a test for determining the custody of a child that is slightly different from the one that exists in British Columbia now but related back to the cultural component . . . . The Attorney General is saying that that would be dismissed, that the courts would see through that.

Interjection.

M. de Jong: He says: "I hope they would." And yet we have heard that argument made. It's one example. It can be applied in a whole host of different areas.

Hon. U. Dosanjh: The test would still remain the best interests of the child, in determining custody. If culture is relevant to that consideration, so be it. But culture cannot be the exclusive determinant of who gets custody, who gets to adopt the child and whether or not the adoption is approved or rejected. I think it's important for us to recognize that our culture -- British Columbia culture, the mainstream culture -- plays a role in what the courts do with adoptions in the courts when we appear to have adoptions done.

Similarly, culture might play a role in determining what the best interests of the child may be. If that is the most important and exclusive consideration in determining the best interests of the child, that would not meet the test that's implicit in the treaty.

[1630]

L. Reid: I want to go back to a comment I made earlier, in terms of needing some comfort around how this might be better for the Attorney in terms of where we are today as a province. We'll use the Murphy case as an example -- and my request for assurance that this process would somehow be improved. For the Attorney's benefit, this is a family that attempted, over a period of six years, to adopt a native child. They lost their home, lost their business -- enormous legal fees. The one determining factor in place on behalf of the ministry was culture. At no point was that decision supported -- not by the Child and Family Review Board, not by the children's commissioner. It was not supported.

The Attorney has commented that yes, there are other avenues to pursue, but when it's the courts, the cost is debilitating for British Columbians. These individuals lost everything for a decision that, frankly, was wrong and was proven to be wrong two or three times. Given that that's the status quo today, I need to believe that this will somehow produce a better product -- less ambiguity, less confusion, less cost, less expense. From what the Attorney has said, I'm not convinced that the best interests of the child will be paramount in this discussion.

I think that in terms of my colleague from Matsqui's comments, the definition of culture will only mushroom to include absolutely everything and, indeed, will deny children access to avenues that are currently open to other children in this province, whether it be access to the Child and Family Review Board, to the children's commissioner, to the children's advocate . . . . What I heard the Attorney say earlier was that indeed other mechanisms, other vehicles, would be created to replace these existing mechanisms. I think it was

section 90 he was referencing, in terms of standards. Yes, we trust that there will be standards. But if the only test is culture, the standard is almost irrelevant.

Again, I'm not convinced, from what the Attorney has said, that this can be a far-reaching discussion. I'm not clear that the ministry is doing anything but distancing itself from accountability on these questions. But in fact this is a system that will very much differ depending on nationality. The avenues open to non-aboriginal children will be dramatically different than those open to aboriginal children; that is my fear. So if the Attorney could comment.

Hon. U. Dosanjh: I think we've gone over this for some time. We just have a different view and different expectations. I can't afford, either legally or otherwise, to re-argue a case that's been before the courts for a long time. Difficult and hard cases sometimes lead one to difficult and sometimes inappropriate conclusions. I can't argue with the conclusions that the hon. member draws. These are very difficult issues; they're heartrending issues.

[ Page 11849 ]

But these people negotiated a treaty in good faith with us. They want to make sure that they take care of their children better than we've taken care of their children for them. I would much better trust them, then, after looking at our own record over the last many decades. It leads me to believe that we are perhaps in for better times.

L. Reid: The Attorney may have seen today the report that was released by the children's commissioner, written by young people in the province. Nowhere did it say that they were looking for less access to the avenues open to British Columbia's young people. It listed off every possible phone number for every possible service. The report was in fact written by four aboriginal young people. They are not prepared to give up that level of access. Will the Attorney confirm that indeed, once this moves forward, they will no longer have access to any of the resources they discuss in the report released today?

[1635]

Hon. U. Dosanjh: I think it is really asking one too much to look into the crystal ball and say whether Nis g a'a are going to make appropriate laws two years from now if they draw down and exercise some of these powers. I think, suffice it to say, that the facilities of the children's commissioner and child advocate would be accessible to the Nis g a'a if they so decide to use them. If they don't, they have to establish comparable standards to deal with those issues.

[H. Giesbrecht in the chair.]

L. Reid: Then perhaps just some clarification on who decides to use . . . . Could a young Nis g a'a person today seek a service that was perhaps not approved by, let's say, the Nis g a'a tribal council or not found within the confines of this?

Hon. U. Dosanjh: Again, we're really into an abstract discussion. At some point, if someone believes that the Nis g a'a have not put in place comparable standards and laws, that person can rely on this treaty,

section 3 of the bill, and take the matter to court and force the Nis g a'a to have those standards in place. I think the avenues are open. But for me to guarantee that there would be XYZ clauses or ABC clauses in the laws they pass . . . . They may want to have PQRST clauses; I don't know. But at some point, there will be judgment on those clauses, either by their democratically elected governments or by their opposition party, or by having the matter go through the courts.

L. Reid: I thank the Attorney General, but that was not the question. The question was whether or not a young Nis g a'a person today could seek service outside of this agreement. The Attorney General's response was that they could pursue it through the courts. Today, a ten-year-old, a 12-year-old or a 14-year-old can pick up the telephone and call the children's commissioner or the child advocate.

Hon. U. Dosanjh: I'm talking about this treaty.

L. Reid: So am I.

Hon. U. Dosanjh: We are talking about today . . . .

L. Reid: We are talking directly about this . . . .

Interjection.

The Chair: Through the Chair, please.

L. Reid: Thank you, hon. Chair -- and the same advice to the Attorney General, I'm sure.

The question was: can young people access . . . ? The minister's response was that someone could pursue it through the courts, if they so desire. For me, that precludes a young person who currently has options open to them. I think my question is absolutely straightforward. If this proceeds, can a young Nis g a'a person continue to call the children's commissioner or the child advocate in the province of British Columbia?

Hon. U. Dosanjh: They may or may not. If the child may not, the Nis g a'a would have to have comparable institutions in place; otherwise, they would have to provide access to the children's commissioner and the child advocate. If they can't set up comparable standards, they're not doing their job.

L. Reid: Who determines comparable standards?

Hon. U. Dosanjh: The answer to your previous question gave you the answer as to who determines: democratically elected governments. We look at those issues, and if we have some powers, we pull back. At some point,

section 5 of the act can come into play, and somebody could take the whole Nis g a'a government to court and say: "You're deficient."

[1640]

I think those are the avenues available to British Columbians outside of Nis g a'a lands. You talk to the opposition party, your MLAs and MPs. If that doesn't work and the law doesn't change, you go to court and get the court to get a declaration. Why is it that the hon. member thinks that we should have something different for Nis g a'a?

L. Reid: I would only invite the Attorney General to read the report that was released today and then check Hansard . What he is saying at this juncture is dramatically different than what young aboriginal children in this province today believe they need. It's an absolutely valid comment. What I hear the Attorney General suggesting is that Nis g a'a young people in this province will indeed have limited access. I leave that for his consideration. What I heard this individual suggest is that new programs, avenues and vehicles will be created that, frankly, deny children access to the existing vehicles. Yes or no?

Hon. U. Dosanjh: I have disagreed with the hon. member's assertion before and indicated what the alternatives would be. I simply restate that assertion.

L. Stephens: I'm happy to join the debate. We've moving to

section 44: "Nis g a'a Property in Nis g a'a Lands."

As it stands now, upon marriage breakdown there's no equal division of property recognized under the Indian Act. I'm sure the Attorney General is familiar with what has transpired because of that. What is happening on the reserves is that the administration of the band councils has discriminated in many ways in regard to housing and other services to aboriginal women. What I would like to ask the Attorney

[ Page 11850 ]

General is: would the Attorney General indicate, under

section 44(c)(ii), whether or not this particular item here that says "the disposition of an estate or interest of the Nis g a'a Nation, a Nis g a'a Village or a Nis g a'a Corporation, in any parcel of Nis g a'a Lands, including . . . (ii) from the whole of its estate or interest, the creation or disposition of any lesser estate or interest" is referring to an ability for an aboriginal woman to receive a proportion of a property on marriage breakdown?

Hon. U. Dosanjh: This

section relates to the fact that they have fee simple lands which they can create some different estates from -- fee tail leases and the like. This has nothing to do with a division of matrimonial property upon divorce or separation. British Columbia law applies -- the Family Relations Act -- and the Divorce Act, which is federal legislation. All of that applies, and all of what that entails applies, with the exception of some areas such as custody issues, which are specifically provided for.

[1645]

L. Stephens: Well, if we go down to 46, it does say: " . . . in respect of estates or interests that are recognized and permitted by federal or provincial laws of general application will be consistent with federal and provincial laws of general application in respect of those estates or interests . . . . " And I presume that this is the

section that in fact authorizes what the Attorney General has just said.

Hon. U. Dosanjh: What this simply says is that if the Nis g a'a create a lease, they can't say it's a mortgage. It's nothing to do with the issue the hon. member is actually relating it to.

L. Stephens: I was hoping that in fact this

section did talk about property rights and that this was the spot where aboriginal women could find some comfort that in fact the discrimination they have been subjected to for 100 years would now be coming to an end under this treaty. So I would like to ask the Attorney General, then: where does it say in this treaty that aboriginal women will have the protection for property rights on marriage breakdown? Is it simply because the Indian Act will no longer be in force for the Nis g a'a nation?

Hon. U. Dosanjh: I think that I've referred to paragraph 13 of the general provisions actually quite often now in this chamber. That's that federal and provincial laws apply to the Nis g a'a nation, and laws relating to division of property, divorce and the like are those laws that are referred to in 13. These lands would no longer be reserves; therefore the Indian Act shall not apply. In addition to that, if there is any doubt in the hon. member's mind, it is the Ministry of Attorney General's view that, to the exercise of Nis g a'a authority, the Charter of Rights and Freedoms applies. And I think that all of that put together should give you sufficient comfort.

L. Stephens: I wish it did, but unfortunately, it really doesn't. Perhaps the Attorney General could comment on this. There is a bill before the federal Parliament, C-49, that deals with land codes -- aboriginal bands developing land codes and how they relate to property on lands. There are only five bands in British Columbia that these land codes are going to apply to, and Nis g a'a isn't one of them.

I can just tell the Attorney General that after our debate and discussion yesterday, I received a number of faxes from aboriginal women who happened to be watching, and every single one of them spoke about this issue. This is probably the most important issue for aboriginal women. They need to have a little bit more comfort than just the Charter. We've been living under the Charter for a number of years, and aboriginal women have always had to go to the courts.

Interjection.

L. Stephens: I know the Indian Act is not going to apply. I hear the Attorney General saying that, and I know that gives him comfort as a legislator and as a lawyer. But the fact that a lot of these aboriginal women have had to go through a lot of difficulty to access their rights . . . . That's what they're talking about here -- accessing their rights. We talked about this yesterday. The historical and the traditional dealings of aboriginal bands simply discriminate against these aboriginal women. They want to see something on paper that says that can't happen. They were very disappointed that, in fact, it wasn't in this particular agreement.

[1650]

If that's the Attorney General's answer -- that it is the Charter that they have comfort with, that the Indian Act no longer applies and that the Nis g a'a agreement is what the laws of the land, so to speak, will be generated under -- then that's the answer that they're going to have to take. We will see what happens from there and whether or not the bands, in fact, do make sure that aboriginal women's interests are looked after. But I can tell the Attorney General that I'm sure he will be hearing if that's not the case. I'll make sure that the Attorney General hears that those things aren't happening.

An Hon. Member: I told you so.

L. Stephens: Yes, I told you so.

Another big problem that women have faced is the issue of membership. Even though under the Charter . . . . Even under federal legislation, Bill C-31, which said that aboriginal women must be reinstated, the fact is that they still haven't been, in many cases. They still do not have the same status on the lands that they did.

I'd like the Attorney General to tell me that this is all going to change with the Nis g a'a treaty here; that women who had been disenfranchised and had federal legislation that re-enfranchised them but are still discriminated against and rejected by the band councils -- that that will no longer happen and that aboriginal women and children will, in fact, receive the rights they are entitled to under the Charter and under federal legislation.

Hon. U. Dosanjh:

Chapter 20 is the

chapter dealing with enrolment and the like. I think, first of all, that removing the shackles of the Indian Act would be a breath of fresh air for the Nis g a'a. It would be freedom. This treaty better and more appropriately defines the powers and obligations that they will have. It ensures that there would be democratically elected governments. It ensures that they would have to go through a certain process to pass laws. It ensures in certain areas that their laws would be invalid if they don't meet certain standards.

On top of that, I can tell you -- you all remember -- that it is the Ministry of Attorney General's view that the Charter of Rights and Freedoms applies to any exercise of Nis g a'a authority under this treaty. I think that when you put all of

[ Page 11851 ]

that together, that's the best package of guarantees that one can put together on this issue. I think it is appropriate that that's the assurance that we go with. At some point, if it doesn't work -- because there are no guarantees in life . . . . If it doesn't work, I'm sure there might be a revolution in the Nis g a'a, led by the women.

L. Stephens: That may very well be, sooner than people may think.

I am interested in one of the remarks the Attorney General made, and I don't know whether it was a slip of the tongue, or whatever. He was talking about Lisims government and that there would be an opposition to that government. I'm sure that that wasn't what he was meaning in terms of a federal parliament and a provincial parliament. The fact is that there isn't an official opposition to Lisims government, other than elections. In between those elections there is no body that can hold them to account; there is no body to do that.

Interjection.

L. Stephens: Yes, there is. The Attorney General says there is no one here either. We object; the official opposition objects.

[1655]

The issue is: who is going to hold Lisims government to account? The people don't have any say, except at election times. In between those, people are going to have to subsist, as they do now. A lot of people see very little change going to happen simply because we have a treaty. The same process is in place; the same structure is in place. People believe that in fact nothing much is going to change.

What many people, particularly the women, who have been so badly treated by the structure and the process that is now in place in regards to the transfer of the administration of social programs, for instance, that has happened . . . . What they are saying is that they've been badly mismanaged and misdirected. That's not just from one group of aboriginals; that's from virtually every aboriginal band in the province.

Aboriginal women need more than just simply: "The laws of Canada and British Columbia will prevail, and the Charter prevails." Past experience has shown them that that is not a protection for them. If that's all the government side has to offer, then we'll make note of that.

Hon. D. Lovick: I appreciate the points made by the member opposite. Let me say, first of all, that I am simply filling in for a few moments while my colleague the Minister of Aboriginal Affairs is engaged in some other matters and the Attorney General has to be absent for a few minutes. With members' indulgence, I will pick up the old load and endeavour to answer their questions.

I do appreciate the points made by the member opposite. Certainly, as one who has been involved in some small way in the fight for equality between women and men in this country, I appreciate the validity of the case she offers as far as what the legal system has done for women. But it makes the point, I think, that the legal system by itself will not solve all the problems. Discrimination against women and activities that are, quite frankly, antipathetic to the legitimate interests of women are part of a social fabric, and to change that requires much more than passing laws or constitutions or treaties.

This treaty, for all intents and purposes, is silent on those issues. It certainly doesn't exacerbate the problem -- far from it. Indeed, it's probably fairer to say the opposite. But it is effectively silent.

However, having said that, I think the reality of the political structure and the way Lisims and village governments will work leads me to the clear conclusion that conceivably, within weeks of this government taking shape, there could be two different political parties -- one predominantly led by women, for example. There is nothing to prevent that. The Nis g a'a people may well say: "Well, look. We no longer feel that the people who we have elected to this government are doing an adequate job to protect our interests." Accordingly, then, there could be a group elected very quickly to say: "We want better. Especially and specifically, we want better for women."

So I hope that's some comfort to the member. But she's quite right that the treaty itself doesn't speak to the issue. She's also absolutely right when she says that our system of laws has certainly not solved the problem of inequalities.

L. Stephens: I want to thank the member opposite, the former Aboriginal Affairs minister, because that was very helpful. Frankly, that's the first time I have heard any discussion around the possibility of there being an elected opposition to a Lisims government. So I will take the minister at his word that in fact the processes that are available -- or will be or possibly will be available -- to demand accountability in all the areas of government endeavour will be there for women as well as others that are affected by these new self-government provisions.

[1700]

M. de Jong: We're dealing with these sections around "Nis g a'a Property in Nis g a'a Lands." If we accept for the moment that this represents a treaty and a land claim agreement and that these sections collectively set out some of the rights that the Nis g a'a will have with respect to the management of those lands, that will make sense to a lot of people. If there was a power that would be exercised in the broadest possible fashion, it would be the power to manage and determine what is going to happen on lands that have been transferred to the Nis g a'a as part of the ultimate settlement.

I can't resist asking this question of the minister: is it the government's view that the authority that vests in Nis g a'a government by virtue of these sections is an inherent power?

Hon. D. Lovick: As Yogi Berra said: "It's déjà vu all over again." We had this debate on numerous occasions in my earlier portfolio. I can't answer the question, as the member well knows, because the only answer is essentially that the form of government we have stipulated here is the one that was negotiated. I will leave the academic question of the inherent versus delegated right for scholars to grapple with hereafter.

M. de Jong: Scholars and lawyers in the practice of aboriginal law. But it would have been remiss of me not to

[ Page 11852 ]

have at least posed the question as a means of welcoming the minister back, temporarily at least, to the post he formerly occupied.

Are these the provisions -- that is, 44, 45, 46 and 47, I suppose -- by which Nis g a'a government is empowered to create the estates in land that would be necessary to transfer portions of their land either to individuals or to corporate entities? Is this where that power derives from?

Hon. D. Lovick: The answer is yes.

M. de Jong: One of the aspects of this treaty that the minister -- in his former capacity -- and I did discuss during the course of the public debate was the notion of collective ownership versus individual ownership. I won't belabour the point.

But I think that if we have come to that point in the treaty, it is worth emphasizing the view held by many that notwithstanding the powers that are vested in Nis g a'a government by virtue of these sections, one of the flaws of the treaty is the fact that it creates that obstacle between the type of individual ownership of the land that non-aboriginal people in British Columbia enjoy and the type of ownership that will be possible. There will be, I'm sure, a mechanism by which Nis g a'a will own portions of Nis g a'a land.

But it will be different, and it won't be title in the purest sense that the minister and I know it: that we own our homes. For many people, that represents a fundamental flaw in the treaty and the model of the treaty.

[W. Hartley in the chair.]

Hon. D. Lovick: I think the important way to look at this

section and, indeed, the whole treaty, is probably as an enabling document. What these sections do is provide Nis g a'a the wherewithal to make the kinds of laws that they might choose to put in place in order that they could create something more akin to fee simple property ownership as we understand it. It doesn't do it, but it provides the framework that enables them to do so if they so wish. Accordingly, then, I take issue with the member suggesting this is a flaw. I don't think it is a flaw. I think it is a deliberate design of the treaty.

[1705]

M. de Jong: Are there provisions anywhere in the treaty . . . ? I think there are, but if the minister will assist me in confirming this fact: that notwithstanding the powers that are created here, there are ultimately impediments built into this that would prevent an individual Nis g a'a person from transferring whatever form his or her title takes on a portion of Nis g a'a lands to a non-Nis g a'a person. Is that a fair statement?

Hon. D. Lovick: I am in the envious position of having a lawyer on each side of me, and they both simultaneously said: "No, no." That's the answer.

M. de Jong: Unless I misunderstand, then, the suggestion seems to be that there are no impediments to a Nis g a'a person who, upon acquiring a form of title in Nis g a'a lands . . . could then transfer that interest outside of the Nis g a'a family. My impression all along has been that this is something that this treaty specifically does not provide for.

Hon. D. Lovick: My apologies for the delay. The question is complex, and the answer more complex, I think.

I refer the member to 44(e), which simply says: "Nis g a'a Lisims Government may make laws in respect of . . . the conditions or restrictions, to be established at the time of the creation or disposition of an estate or interest of the Nis g a'a Nation . . . . "

Back to my answer earlier, when I said that the treaty is essentially enabling. Okay, this provides the mechanism for them to make those laws. They could quite conceivably make a law that said: "Nis g a'a citizen X could transfer his or her ownership to Nis g a'a citizen Y, who could subsequently dispose of that to a non-Nis g a'a citizen." That is perfectly allowed. The caveat -- and the reason I didn't leap to answer that instantly -- is that whatever they do is still ultimately going to be subject to Charter rights and the laws of general application and so forth. That's just the cautionary note.

M. de Jong: Well, that's helpful. Do these provisions, then, operate in a way that would allow for the creation of an estate in land that could vest in an individual or corporation, and then that interest in that land could ultimately be transferred to a non-Nis g a'a person, without requiring the specific approval of Nis g a'a Lisims government?

[1710]

Hon. D. Lovick: The answer -- I'm going to be very careful how I say this -- is that what the member describes is conceivable. But it is also conceivable that Nis g a'a Lisims government may impose restrictions on that kind of thing happening, but in doing so would, of course, be subject to a Charter challenge or something. Do you see my point? In other words, the answer is really yes and no.

Interjection.

Hon. D. Lovick: I'm sorry -- have I not explained that clearly? Okay. I'll let you reflect on it for a moment, then.

M. de Jong: Not to be cute about this, but my impression all along is that some manner of restriction on the ability to transfer title in a portion of Nis g a'a lands outside of the Nis g a'a family is contemplated. When the minister said candidly some months ago, when we first began to discuss this document, that it enshrines a notion of collective ownership that Nis g a'a government will then deal with in the manner that the minister has described . . . . There will be some restriction.

And the minister is saying: "Well, that restriction will be subject to a Charter challenge." I guess I'm standing here trying, on the spot, to think of how that challenge might unfold, where an individual Nis g a'a person says: "Well, the best title my government is prepared to give me is one that has a pretty significant restriction on it relating to my ability to transfer outside of the Nis g a'a family" -- possibly -- "versus the title that Mike de Jong down the street has, which has no such restrictions." I guess I'm trying to think about how that argument might unfold, because I think in fairness that there has always been a notion that some manner of restriction will be applied by Nis g a'a government as a means of preserving the integrity of Nis g a'a lands.

Hon. D. Lovick: I think we're in danger of mixing two issues -- namely, a government issue and an ownership issue. Let me try it this way. The Nis g a'a, according to this, have the power to pass certain laws -- laws which conceivably could restrict ownership is the safest way to put it -- subject, again,

[ Page 11853 ]

to the Charter. It doesn't, I think, affect land ownership directly -- or it doesn't affect the governance. Now you've got me confused in terms of whether we are coming at this as a governance question or as a land ownership question. Maybe we'd better try it again.

M. de Jong: I'm not sure it would help for me to try and repeat what I said last time, but if the minister wants to take a moment . . . .

[1715]

Hon. D. Lovick: Let me, if I may . . . . I've been away from this too long.

If I may simply refer the member to the lands chapter, paragraph 5, which I think is a nice simplified rendition of the conclusion -- namely: "A parcel of Nis g a'a Lands does not cease to be Nis g a'a Lands as a result of any change in ownership of an estate or interest in that parcel." I think that answers the question that the member poses about the difference between this land and the rest of us and how we own land. He may not like the answer, but that is indeed the answer.

M. de Jong: The purpose of the exercise was to demonstrate that notwithstanding the broad powers that are granted to a Nis g a'a government under these provisions, there are contemplated within the provisions of this agreement restrictions on the kind of title that an individual can own that are perhaps not contemplated elsewhere in the province. That might be stating the obvious, and I'll let the minister respond to that before I move on to a couple of other issues.

Hon. D.