Proceedings in the

Birch Room

The House in Committee,

Section C.

The committee met at 2:48 p.m.

[Susie Chant in the chair.]

Committee of the Whole

Bill 20 — K’ómoks Treaty Act

(continued)

The Chair : Good afternoon, Members. I call the Committee of the Whole on Bill 20, the K’ómoks

Treaty Act, to order.

On clause 3 (continued) .

Brennan Day : I want to begin by saying I was very disappointed to not have a chance to speak to

treaty during second reading, because I think it’s really important to understand

this treaty and its effect on Comox from a local lens as well as acknowledge the extremely

hard work of the treaty team and the multiple councils that have seen the treaty get

to this point. I’ve been in close contact with them, and we want to work with them,

but it is our job here as opposition to make sure that concerns are tabled and adequately

addressed by government.

I want to begin with saying that I do believe that treaty is the right path forward

for British Columbia. I believe the K’ómoks band deserves the opportunity to move

beyond the Indian Act and towards stronger self-government.

[2:50 p.m.]

I’ve tried to treat this file with the seriousness it deserves, and it has now been

caught up in a lot of outside narration that I don’t think is particularly helpful

for the discussion we’re here to have today. I also don’t want to pretend to be a

fourth-quarter quarterback here in a process that’s been underway since 1991.

With that, we’ll get into the importance of committee stage. I will note that the

most vocal critics of this treaty have chosen not to participate to this point in

the committee stage which I find very disingenuous because it is important to hold

the treaty to account.

With that, I don’t want to have an asked-and-answered response on this because I was

in committee room the other day when the upfront cash component was discussed here,

in the room.

I think it’s important that the province also answer the question regarding the land

component and the estimated valuation behind that because it is a substantial sum

of property with multiple different uses, including the timber and other things. I

want to make it clear that the cash component is not an unreasonable amount. We’re

talking a school or a school and a half in the grand scheme of what it costs to build

today in British Columbia, and I think that needs to be put in context for this treaty.

I’ll get to the question. Can the minister tell us what the total value of the land

package in this treaty is, and, in addition, just clarify what the ongoing annual

compensation portion of this treaty will be? In 2018, the figure cited by the government

for the land component was about $113 million in land and $37.4 million in standing

timber. The land values since 2018 in the Comox Valley have increased by 35 to 40

percent.

Could the minister please confirm when the last value estimation was done on the land

portion of the treaty, and what the current value of that land is today?

Hon. Spencer Chandra Herbert : It’s good to see the member for Comox here to discuss the K’ómoks treaty. Certainly happy to answer questions as there’s lots of good support in the valley,

but lots of questions, and I think there’s always good to answer them.

The member said: “Don’t do an asked-and-answered.” I do think that it’s important

to respect the House’s time, and that when a question is engaged fully in this room,

that that be the historical record, rather than any time somebody comes in can ask the same question that was asked earlier.

However, the member did want to understand the ongoing financial commitment from the

government. I think we had a couple of questions on that last time, but I’m happy

to state it once more, just in the spirit of collegiality.

[2:55 p.m.]

It is $400,000 ongoing for government supports and operations. There is financial….

For about 20 years, there will be continued supports for…. In terms of ongoing, because

that was the question, it was $6.8 million in self-government funding through Canada;

$400,000 per year in interim annual provincial funding for K’ómoks lands and resource

management activities; and approximately $1.6 million in annual support to K’ómoks

over 20 years, towards park management for Sandy Island, Seal Islets and Wood Mountain,

but that’s to end after that 20 years.

In terms of the other question, as has continued to be practised from when the opposition

had been in government, as is still the practice today, the land valuation is a cabinet

confidence matter.

Brennan Day : I do think it’s important that we understand what the estimated value of that land

is. I guess the question that won’t break confidence is: when was the last time that

the government assessed the value of that property as part of this treaty? The numbers

I have are from 2018, at $113 million. Property prices have gone up 35 to 40 percent

minimum over that time.

I can do that math, but I would like to know when the government last assessed that

value because it does affect the total value of this treaty quite significantly.

I do think it’s important that we are transparent with British Columbians on the total

cost of treaty because this will be, as the minister has stated multiple times, a

precedent-setting treaty that will establish precedent over the rest of the province.

There are 200,000 First Nations individuals living in the province of British Columbia.

If the treaty package is worth $1 million per individual, that is important to understand

as part of this treaty.

However, again, it is up to government to be transparent with those figures for British

Columbians so that we can truly understand what we’re looking at, going forward. Without

a plan, this will never be resolved. We need to set that precedent now, which is why

it’s so important that we have this fulsome discussion.

So if the minister could please confirm the last time that the government did a land

valuation on the property in this, it would be very appreciated.

Hon. Spencer Chandra Herbert : I’ll see what I can find out and what we are able to share here.

I don’t believe I’ve said that this treaty is precedent-setting multiple times. I’m

not sure if the member has quotes that he’d like to share. Each treaty is certainly

engaged with on a nation-to-nation basis, government-to-government-to-government,

so each treaty is very much an individual package. I don’t think I would have used

those words, but if the member is able to share, as he said I repeated it multiple

times, I’d be interested.

Brennan Day : I find it very frustrating that the government cannot be forthcoming with the value

of the land in this treaty or even of when the government last assessed the value

of that land, given the massive changes we’ve seen in property value across British

Columbia, with an outsized increase in the Comox Valley. If in 2018, $113 million

was the estimated value of the properties in question, that number has gone up dramatically. It is important we understand

that, so I will just reiterate that.

Going to the precedent-setting statement that I made earlier, I’ll move into the next

section, which is actually the living treaty language. I think this is probably one

of the most important structural questions in this treaty, which is leaving a lot

of questions open for myself and many, many legal critics and treaty experts in the

province.

I say this as somebody that has been very clear from the outset that I want to support

the treaty as the best path forward in B.C. I do not think the alternative, which

is leaving more and more of these questions to long, expensive litigation, is good

for K’ómoks, good for the neighbouring nations or good for the Comox Valley or British

Columbia at large. But because treaty is the right path, we have an obligation at

committee stage to understand the model we are being asked to approve.

This treaty adopts what has been described as a living agreement model. The treaty

itself says that it is a living agreement. This is a departure from previous treaties.

K’ómoks now own public materials to say that periodic renewal allows the three governments

to open parts of the treaty to renegotiate every ten years, including because of legal

development, environmental changes or what they describe as a me too clause, if another

treaty gets something that is not already included.

[Jennifer Blatherwick in the chair.]

Now, that is materially different from the old full and final settlement language

that was in previous treaties like the Tsawwassen Final Agreement, which says that

it constitutes the full and final settlement of the Tsawwassen Aboriginal rights,

including Aboriginal title, and those rights are modified and continue as modified

under the agreement. Tsawwassen’s own agreement does have a periodic review date of

15 years, not the ten-year renewal which we’re contemplating in this settlement.

[3:00 p.m.]

What caught my attention is that the recent reporting for Tsawwassen’s support for

ratification of the K’ómoks treaty says that Tsawwassen is currently undergoing its

own 15-year periodic review and that its proposed modifications are tethered to the

ratification of the K’ómoks and Kitselas treaty bills.

My question to the minister is fairly straightforward, and this, again, is why we’re

potentially opening Pandora’s box here. Does the passage of this treaty set a practical

or legal precedent for reopening existing treaties to seek similar ten-year periodic

renewal language or similar living-agreement mechanisms, including in the context

of ongoing treaty reviews like Tsawwassen’s?

If so — because that is what Tsawwassen is saying, not me; the Delta Optimist reported that yesterday, I do believe — how many other treaties are potentially going

to be reopened because of the passage of this treaty, when it comes to the living

treaty language, that don’t already include that type of periodic review language

in them?

Hon. Spencer Chandra Herbert : The member might note we discussed the differences in how the treaty process has evolved

over time in the last sitting. We discussed around the modification to living agreements

but really about how they function the same in the sense that the

section 35 rights

are expressed through the treaty.

The discussion around living agreements, meaning there’s no certainty and that this

is somehow brand new…. The member, in his question, mentioned periodic renewals in

the Tsawwassen treaty, and a number of the other modern treaties have the periodic

renewal.

The approach here is much the same in that if all three parties agreed that they wanted

to make changes, then they could at that period. In terms of the other modern treaties,

the member may know of — I believe he may have even voted on them — changes to the

ɬəʔamɛn treaty, for example, which were not actually brought forward after the periodic renewal

period but prior to, I believe.

So modifying laws, modifying how we work together, is not new. That’s how the treaty

process has worked up to this date. This continues that process and that approach,

where all parties would have to agree to periodic discussion around whether they needed

updates to the treaty for a variety of reasons.

Just to be clear on the legal question: is there something in this treaty that, then,

requires us to change all the other treaties? No, there’s nothing in this legislation

that would require that. There is interest, obviously — the member noted Tsawwassen

— in seeing updates to language more along the lines of this treaty in a couple of

places.

I think one example might be ɬəʔamɛn Nation. We made modifications to their treaty — I believe it was last year — with

reference to a living agreement as well. So this is very much in keeping with how

we’ve been working with modern treaty nations.

Brennan Day : The ɬəʔamɛn agreement was a final agreement. I will thank the minister for thinking that I was

in government at that time. I’ll take that as an acknowledgement. I don’t believe

we did vote on that in the House.

But if the answer is yes, which it seems like it is in Tsawwassen, and the other treaties

that are potentially reopened by this, has the government done any assessment of what

the downstream impacts of this could be on future litigation, on the treaty administration

and on the growth of the bureaucracy that’s going to be required to support these

regular reviews?

[3:05 p.m.]

Again, we have a number of treaties that are already signed in this province that

will obviously be opting into this language. There’d be no reason for them not to.

But the ongoing cost and management of this is something that the government needs

to consider.

What efforts have the government done to price in that sort of ongoing obligation

as part of the bureaucratic budgeting and forecasting?

Hon. Spencer Chandra Herbert : Just for the member to know, I think he said that I said yes. Again, I don’t think

I said yes. I think I said that other treaty nations might be interested, but they

might not be. In fact, my answer was no, that this does not create a legal obligation

on other nations to follow along. I’d appreciate if that could be clear, for the record.

Also, to the member’s statement that he wasn’t here when the ɬəʔamɛn treaty amendments were passed, I believe he was; they were passed in May of 2025.

In fact, amendment 4 included the ʔayʔaǰuθəm language, changing the title of the ɬəʔamɛn final agreement to an agreement ʔaʔǰɩnxʷegəs, which means a good relationship with someone together. It added language that recognized

the treaty as a living agreement that provides a foundation for evolution and an ongoing

relationship amongst the parties.

If I remember, I think this was actually passed almost unanimously — not quite, but

we were close. So it was certainly a good day here in the Legislature working with

ɬəʔamɛn.

Yes, to just confirm again, this is not about creating a new bureaucracy to look at

agreements once every ten years. This is about continued governing relationship work

with nations, just as if the city of Vancouver approached the government and said,

“We need amendments to the Vancouver Charter” — which, I know, have come through this

House a number of times. In this case, it’s a ten-year review, not every year or every

time somebody wants a change, but to look at it in a ten-year period.

If it makes sense for government, if it makes sense for Canada, if it makes sense

for K’ómoks, then we can make a change, but if not, then we keep talking. That wouldn’t

require a legal obligation or bureaucracy to do it. We, in fact, have staff who manage

the relationships that we do that work with already. It doesn’t increase that load.

In fact, in many cases, working with treaty brings us to greater certainty. It reduces

the extra work that can come when you have uncertain obligations or requirements.

Brennan Day : I know the minister is being very careful in his wording here, saying that there is

no obligation for the other treaty nations to look to modify their treaties to the

ten-year process. Obviously, there is a considerable benefit for them doing so. I

guess the question is the open language, the “me too” clause — and that’s the words

from the treaty negotiation team, in terms of being able to opt in to some of these

future treaty developments, whatever those may be, or changes — with a ten-year renewal

period.

Is there anything preventing all of the other existing treaty nations currently from

advancing living treaty language into their own treaties, based on the passage of

this treaty, or can they already do that independently of this treaty? Does this set

a precedent for them to then say: “Me too. We would like into that process. We would

like to be able to open these treaties up every ten years”? Does this set that precedent?

I think that’s very important for people to understand. It does not give us that finality

which was in those previous treaties. That, as it has been described to me by the

treaty team and the K’ómoks band, is potentially a very good thing but it also potentially

opens up a whole bunch of future litigation for people opting in.

[3:10 p.m.]

Hon. Spencer Chandra Herbert : If I might ask a clarifying question. I’m not understanding the difference the member

sees between the old periodic review, periodic renewal and what we present with this

treaty here. They both operate very much the same way in the sense that people can

make a request for change. We can consider it, and if we say no, then it doesn’t happen.

If we say yes, then we work on it together.

So if the member can describe the difference as he sees it, it would help us understand

what he’s asking.

Brennan Day : The previous treaties, even in title, were final agreement treaties. That was noted

right in the language, which is very much different than a living language treaty

in this.

If there are periodic renewals in the other ones, what were they? Were they consistent?

Does this new language in this treaty potentially, then, retroactively, if they opt

in…? Again, I know the minister was extremely careful about his language, describing

it as they could potentially opt in, but there would be no obligation to opt in.

I recognize that that is a distinct change. Is there the possibility that the new

language, the living treaty language, materially changes the ability for nations to

retroactively negotiate for rights and title within the scope of the treaty? Can that

now be adopted if this treaty is passed by other final agreement treaty nations?

Hon. Spencer Chandra Herbert : I’m not trying to be deliberately obtuse or anything. I’m just trying to understand.

The member seems to suggest about this retroactive negotiation that it leads to a

whole bunch of lawsuits and uncertainty. The treaty expresses the

section 35 rights

of the K’ómoks people. They are expressed in the treaty, and they cannot be expressed

outside of the treaty.

A periodic renewal, a periodic review, doesn’t change that fact. The only thing it

changes is that, effectively, 15 years to ten years is the difference between the

former and the current. So in terms of saying that it’s going to open up a whole bunch

of retroactive stuff, it can’t, unless all parties said: “You’re right. We think the

treaty needs to be completely changed.”

If all three — Canada, B.C. and the K’ómoks — said they wanted to change everything,

well, then they could have that conversation. But I imagine they would still have

to connect with the public. They would still have to do their due diligence, all of

those kinds of things.

But the K’ómoks Nation was very clear that this is the treaty they support, this is

the treaty they want, and this is the treaty that we as a government and Canada negotiated

to support. So a theoretical, down the road, what other nations might want to do based

on this treaty, could be a point for discussion. I think the legal fact, though, is

that, again, the only change here is to go to ten instead of 15, effectively. The

treaty still expresses the will of the nation, of Canada and of B.C.

[3:15 p.m.]

It’s not about opening the door to new lawsuits at this renewal period. In fact, it

expressly says in the treaty very clearly what the treaty is about and what you can’t

do outside of it. It doesn’t allow for extra work outside of the treaty to try and

get stuff that wasn’t in the treaty just at the ten-year renewal because somehow it

opens up everything. It doesn’t. It only allows the parties to make the request to

have discussions at that stage.

Brennan Day : Based on the potential compensation here, a group of 340 people that represent the

K’ómoks First Nation, obviously, would opt in to this treaty. It’s a great deal for

them. I do think we need to acknowledge that, and I do think this is a great step

forward for both the K’ómoks Nation and the Comox Valley.

But I do want to be very clear about the language. What I’m asking is: by passage

of this treaty, does it pass a precedent that will be used by other nations to reopen

their treaties to incorporate living language into already existing final agreement

treaties?

Hon. Spencer Chandra Herbert : Well, I might not term it precedent-setting, so I would disagree with the member there.

I certainly would agree that there is interest in seeing it used in other treaties

and other treaty nations asking about it and trying to better understand it. I wouldn’t

be surprised if other treaty nations came forward and said, “We would like to do something

similar,” either with pre-existing treaties or upcoming, potential treaties.

That being said, it has to be agreed upon. You can make a request, but it doesn’t

create the obligation that it has to be followed, in the sense of the legal language

is clear.

And in terms of precedent, I think the member might remember, again, as I mentioned

earlier, the ɬəʔamɛn amendments that, indeed, shifted the language to become a living

treaty. In that sense of language and precedent-setting, certainly, it’s already been

something that the House voted on and approved in 2025.

Brennan Day : To the minister: you mentioned that there has been interest expressed by existing

treaty nations to potentially go to the living treaty model. Could you please let

us know what existing treaty nations have expressed that interest and at what point

those discussions would potentially start to happen?

Hon. Spencer Chandra Herbert : This is about the bill itself and the legislation, not the estimates process.

Brennan Day : I’ll move on. This will be a repeat question, so I mean, I expect it to be a fairly

simple, straightforward answer.

From the outset of this process, I’ve tried to be extremely clear that I believe that

treaty is the right path. I’ve also tried to be clear, to the members of my riding,

that one of the reasons that treaty is the right path is because negotiated agreement

is, obviously, far better than litigated uncertainty, and that’s what we’ve seen in

British Columbia.

Over the period of the vote on ratification to this treaty to now, obviously, the

legal exposure and attention that Indigenous reconciliation is getting in this province

has increased dramatically and has shifted substantively. That’s why it’s extremely

unfortunate we’re having this conversation now on treaty with that as the backdrop.

But because so many people in the Comox Valley never read the treaty…. Let’s be clear.

Nobody does. You can do all the consultation in the world. People are always going

to be last-minute commentators on it.

[3:20 p.m.]

I’d like to confirm once again, clearly and unequivocally for the record, that all

private property not specifically identified in the treaty and its supplemental documents

as current treaty land, former K’ómoks private fee simple land, subject to the consent

mechanisms in the treaty or as land that may in future be added through the explicit

process set out in the treaty — willing seller, willing buyer — is outside the treaty

land package and not put at risk by this agreement.

Hon. Spencer Chandra Herbert : Yes, as has been clear, as I’ve stated many times over, despite some folks spreading

misinformation, any private land is only on a willing-seller, willing-buyer basis,

and the land that is in this treaty package, as described by the member, is the private

land that is in this treaty package.

Your homes, your businesses, if they are not owned by K’ómoks, if they are not part

of this treaty package, as expressed by the member, are not in any way affected in

the sense of someone else taking ownership or anything like that.

So very clearly, the land is Crown land. The land is K’ómoks-owned land, the land

is reserve land that’s currently owned by K’ómoks, and then there are a few pieces

that they’ve purchased as well. But the member correctly identified the lands that

are in versus the lands that are out.

Brennan Day : I think this is extremely important to make sure we get right, because that is, obviously,

given the backdrop of all the other legal problems going on in this province, probably

the key issue that I’m certainly hearing in my office. The misinformation around that,

and the conflation of this with other legal decisions, is obviously problematic.

Related to that, can the minister confirm for the record that this treaty, once ratified

in its current and unamended form — as that is not an option, unfortunately — does

not create a mechanism by which ordinary, privately held lands in the Comox Valley,

beyond those expressly identified in the treaty architecture itself, can later be

swept into treaty lands without the legal processes and consents expressly contemplated

in this agreement?

I’m asking the question in a different way, but I do think it’s important. Again,

the government has not done a great job of reassuring the public on this through the

decisions that have happened over the last year, and I want to make sure it’s on the

record so I can stand by my decision when it comes to the vote.

Hon. Spencer Chandra Herbert : Thank you to the member for acknowledging the misinformation that some people have

been sharing — including a number of politicians, unfortunately — around land claims,

land rights, what your role is in this province. I appreciate him speaking out about

that as well.

The question, really, is: are private land owners shielded from claims for new, exercisable

section 35 rights under the treaty, for any exercisable 35 rights under the treaty?

And the answer is very much the same as I gave before, that private land owners are

fully shielded from claims for new land claims by treaty nations.

Treaty nations agree in the treaty that they will not assert Aboriginal title to any

lands, including privately owned lands, or assert any other rights not set out in

the treaty. Future lands cannot be added to the treaty unless the treaty nation owns

them in fee simple and B.C. and Canada consent to the addition.

Brennan Day : We’re going to move on to woodlot licence W0085 and the two other woodlot licences

that are part of this treaty package. I’ve got a bit of a

preamble here, and I will

provide the minister with the written comments from the woodlot owner in terms of

how this process was done. Much like the overlapping claims problem, the process is

written down and doesn’t seem to have been followed correctly.

I want to focus very specifically on the process of this because, in my view, that’s

where the committee can do some of the most useful work and make sure we get concerns

of the residents on the record.

The bill is clear enough about the legal end state.

Section 15 provides that woodlot

licences W0085 and W1677 expire 25 years after the effective date and are non-replaceable

and that the identified area of W0026 is deleted 25 years after the effective date.

It also says that the Forests Minister may enter into an agreement for replacement

land or compensation, but it does not say the minister must agree to that compensation.

So the legal effect is plain. That is a language choice in this treaty. What is not

plain, I think, and what needs to be better understood and deserves to be on the public

record is how the affected tenure holders were treated through the process that got

us here. The material submitted to me by the holder of woodlot licence 0085 paints

an extremely troubling picture of how this process has evolved to this point.

[3:25 p.m.]

Mr. Kevin Griessel describes a multi-generational operation. He sets out that the

woodlot application process began in 1990, that Kevco Timber was awarded WL0085 in

1991, that the family has managed it since 1991 and that it has received repeated

recognition for stewardship and excellence in management, including a 2004 Excellence

in Management Award, a 2015 Private Forest Stewardship Award and a 2019 Forest Minister’s

Award for Innovation and Excellence in Woodlot Management.

He also makes a broader point about these woodlots, what these woodlots represent

in communities like ours. He says that they are not just timber tenures; they are

community green spaces, rec areas, wildlife habitat and places that support small-scale

local forestry, local subcontractors, value-added manufacturing and wildlife risk

reduction in the rural interface, which that woodlot certainly is. He says, and I

think this matters a lot, that the loss of even one of these businesses to the communities

can have a ripple effect on the broader economy.

What I really want to get to, though, in this is the process. Mr. Grissel states that over many years the message they received was essentially that there would

be no negative effect on the licence. That the Crown portion would go to K’ómoks only if they agreed to sell the licence willingly or if they were offered and accepted

a suitable replacement property in return. If they wish to stay in their current licence

area, that would be their choice.

Then he says that during COVID, letters were sent to neighbouring property owners

indicating adjacent Crown lands would be going to K’ómoks — as they have, or they will be — and that concerned neighbours contacted the woodlot

holder before the affected licensees themselves had been told their woodlots were

not only on the table, but effectively included in the package.

He points to Bill 28 that was passed in 2021 as the turning point, saying that it

changed the framework from “must” replace to “may” replace, in the language, removing

what had previously been the protection for Crown tenures affected by treaty. He then

says that after COVID, when the licensees finally met with MIRR negotiators, they

were told that the woodlot had already been formally offered to K’ómoks and that they only had two options — immediate forfeit for compensation, which to

this day they say was never actually quantified with a dollar value for them, or a

one-time 25-year extension with forfeiture at the end and no further compensation.

He writes that there was nothing that they could do. He also says that when they pushed

back and proposed alternative replacement areas, the file was passed back and forth

between the Ministry of Forests and MIRR, with each acting as though the other were

responsible. It’s something we see fairly regularly. I’ll point to the estimates process

and B.C. Ferries. The Ministry of Transportation is just one of a number of examples

where passing the buck seems to be the standard.

He writes that the option to stay on the land they had managed for over 30 years was

simply removed and they were told in effect that the decision had already been made.

So with that, neither committed to anything beyond working on finding a replacement

area. He quotes one meeting where after asking why B.C. Timber Sales land could not

be used to replace treaty-affected woodlots, they were told, “The Ministry of Forests

has no appetite to replace woodlot licences.”

Then there is the district lot 88 process. The submission says WL0085 and WL0026 began

working directly with K’ómoks, that a land swap involving district lot 88 was proposed by K’ómoks, that significant

professional work was done at the woodlot owner’s expense to assess that property

and that after that work, the parties entered into a signed MOU with K’ómoks dated October 11, 2024, very close to the signing of that treaty in which K’ómoks supported replacement of the unit-based

schedule B lands with an equal and comparable

area and identified district lot 88 as the preferred area of investigation for that

land swap.

The MOU says, amongst other things — and I’ll provide it to the ministry; I’m sure

they have it — that the K’ómoks supports Kevco in maintaining a replacement area. The replacement area must be equal

and comparable. K’ómoks supports inclusion of the affected lands within a new area-based licence, preferably

a woodlot licence, and both parties agree to collaborate with the Ministry of Forests

and MIRR and seek prompt approval of the area replacement.

Then according to the submission from Kevco, K’ómoks had an election, the option disappeared and no formal explanation was given why. After

months of follow-up, they were simply told that K’ómoks had pulled it off the table and that they should have known that by now. The submission

says six figures were spent by two small businesses, Kevco and Chinook, which is one

of the other licence holders, only for it to vanish without any formal notice or explanation.

[3:30 p.m.]

I want to be very careful here. This is not technically private property, if you want

to be very specific, but certainly the intent and the ongoing use of woodlots are

very unique to British Columbia in that they are multigenerational and have an ongoing

local forestry impact.

I’m not asking the minister to litigate every factual disagreement between the parties

in one answer, but I am asking for a clear chronology, because the committee is owed

— the affected tenure holders — an answer, because this is an unresolved question

in this treaty that seems to have been lost, ignored. I understand people have limited

bandwidth to deal with these issues. Certainly, K’ómoks has been extremely busy with this process.

My question to the minister is: can the minister walk this committee through, step

by step, the process by which the holders of W0085, W1677 and W0026 were informed

that their licences or licence areas would be affected? What options were formally

offered to them at each stage? Which ministry was actually responsible for pursuing

the replacement land, and what replacement areas were actually evaluated?

What became of the district lot 88 proposal? Is it still on the table or not — and

the October 11, 2024, MOU, which now seems to have been withdrawn? And whether the

government is satisfied that the process afforded to the tenure holders was fair,

transparent and conducted in good faith.

Again, this treaty does set the process up. If the process is flawed, I think we have

a responsibility here to identify those shortcomings in future, to try and rectify

them today. Certainly, reconciliation can’t be done at the expense of others, and

this seems like a place where that process failed.

Hon. Spencer Chandra Herbert : I’m not going to get into all the “He said, she said.” “This happened that meeting.

This happened that date.” “We disagree with that argument. They disagree with this

argument.” I think the focus the member has is: can we find a way to work with these

woodlot operators? Can we find a way to work with them so that they can see their

future?

There were a number of creative approaches the member referenced around looking at

replacement lands, looking at other options. We’re still very much engaged in those

conversations with both the woodlot operators and K’ómoks and the Ministry of Forests, I should say quite clearly, because we know the value

woodlots have in communities and certainly…. In fact, I heard that from the K’ómoks Nation members, as well, about how they value the woodlots and the local businesses

and the jobs that come out of them and want to find a way together in the future.

Certainly, I don’t have new information to say this has been solved, that an agreement

has been reached. But there is a continued interest from my ministry and Ministry

of Forests — it’s my understanding — to work through these issues with the woodlot

licensees.

Brennan Day : Thanks to the minister for the response.

[3:35 p.m.]

I don’t think that’s going to be a particularly reassuring response to the woodlot

owners who are now being swept up in this a little bit unnecessarily, even though

an MOU was signed, which seems to have collapsed. They’ve never been given an actual

offer of what that cash entitlement will be.

I guess we’ll go back to first principles here. Can the minister identify clearly

which ministry had lead responsibility for replacement options for W0085, W1677 and W0026? Was it MIRR, or was it the Ministry of Forests?

Hon. Spencer Chandra Herbert : Replacement lands would be held through the Ministry of Forests, and of course we

would be involved in as much as we’ve been supporting the treaty and supporting the

work to get us to this stage.

Brennan Day : Who will be the lead ministry in this, and why has this broken down? I get that ministries

don’t love to talk to each other. I feel at this juncture, now that we are going to

vote to pass this treaty, likely this week, it’s important we understand who they

will be dealing with, since we have a number of years here before the treaty takes

full effect. This is one of the outstanding items that does need to be resolved.

Hon. Spencer Chandra Herbert : Yes, the member mentioned that we have some time to work this through. Of course,

there’s the period before treaty effective date, which could be three years, could

be a little less, could be a little more.

Indeed, in the case of 25 years of, at least at this stage, a continued commitment

for support for the woodlot licensees to continue their work, obviously you’d want

the answer and a bit of a solution sooner than that end of the period, given the need

to make investments and the need to plan for the future and so on. But in terms of….

Treaties really are an all-of-government approach, so when we make a request through

negotiation and coming forward with a proposal, obviously, we are supported in that

proposal through the Ministry of Forests. They will assess their work and assess what

they need to do. Can they agree to this? Can they support it? Can they find a path

at least to work with us on it?

Certainly, my team has very much been taking the lead in terms of leading those conversations

with Forests. In the end, of course, decisions have to be made at the Forests table

that are not made at my table. But I don’t know…. So in that sense, they are the lead

in terms of making a decision around the impact and what the future looks like around

these woodlot licensees and how they work with Forests, but we’re very much at the

table because we want to make sure that we’re doing our job, as well, to find a harmonious

pass-over, so to speak, or harmonious handoff in the sense of how these arrangements

are made.

Brennan Day : I guess I will follow up to the minister. Can the minister confirm whether Bill 28

changed the effective protection for treaty-affected woodlot licences by removing

the mandatory replacement model to a discretionary replacement model? Given that that’s

the case, will this minister commit today to settling this issue with these three

affected woodlot licensees? There is no current mandatory replacement for these, and

obviously, this is something we don’t want to have sour this relationship right out

of the gate with K’ómoks and the broader community in these important areas.

[3:40 p.m.]

Hon. Spencer Chandra Herbert : To our legal team’s understanding, the bill the member mentioned, Bill 28, does not

actually have an association with these woodlots. They’re not connected in terms of

the argument the member was making. It doesn’t actually apply in this legislation.

They’re not the same thing.

Also, for the record — I know the member mentioned it as well, acknowledging that

these are not privately held lands — these are Crown lands that the member is talking

about, where members of the public were given the ability, through their work, to

use those lands as woodlots. Just to be clear, these are not private lands, because

some people might suggest otherwise.

We do continue to see the value in working with the woodlot licensees. We see the value of woodlots across British Columbia, and I think we’ll continue

to support those conversations and discussions to find a way. That being said, it’s

important to know that the licences would be converted to 25-year licences.

That’s quite a considerable amount of time to make decisions around the future. We’re

hoping that those decisions and discussions get resolved sooner, obviously, but a

25-year guarantee for use of Crown land is a lot more than most people get when it

comes to tenures. Certainly, we’re glad that we’re able to make that agreement with

K’ómoks and with Canada to support continued woodlot operations, and we’ll continue to support

that conversation.

Brennan Day : It does take a fair amount of time to grow a tree. That’s why the woodlot licence

programs have been so beneficial, because of the long window you have to manage those

responsibly. Short-term management of timber lots, as we can see from many other examples

on Crown land, generally have negative environmental consequences on long-term sustainability

for the forest, of which this is an extremely important piece of recreational land,

as well, in the Comox Valley.

I would say that the lack of mandatory replacement for a swap here is a concern, and

I would again urge both the Ministries of Indigenous Reconciliation and of Forests to get back to the

table on this and try to address this.

The onus now is on this woodlot owner. There is language in this treaty where they

will be responsible for replanting and returning it to that state for a crop they

will never harvest. Again, we need to be very careful when it comes to the management

of this property through this transfer, because there could be some substantial negative

consequences.

I guess we’ll go back to a sunk-cost question on this. The submission from Kevco and

Chinook says that six figures were spent investigating the DL 88 option after K’ómoks proposed it and the MOU was signed. Did the province know these costs were being

incurred? If so, what duty did the province think it owed those small businesses before

allowing that process to collapse without any formal written explanation?

Hon. Spencer Chandra Herbert : Well, the province was not party to those conversations between a private company

and the K’ómoks Nation. So of course as we were not part of it, the member’s characterization of

us allowing those talks to collapse is probably more of a political argument. We were

not involved in those conversations. So we couldn’t have been involved in the discussion

or be characterized as the member did.

[3:45 p.m.]

Brennan Day : Certainly, the base of this problem is that the buck has been passed between your

ministry and the Ministry of Forests, and there has been no resolution. Yet we’re sitting here in committee stage of this treaty. Again,

I would just reiterate the importance of getting those two ministries into action to try

and settle this.

We’ll go to the public transparency piece of this consultation. At the Union Bay Hall

open house, the submission says the map shown to the public did not identify the woodlot

licence areas as being included in this treaty, even though now they are, even though

the affected licensees say the decision had effectively already been made. Can the minister explain why

the public record at that stage did not clearly show the impact on the local woodlot

licences during a local public consultation proceeding?

Hon. Spencer Chandra Herbert : Back in 2022, my understanding is the lands that were shared at that time were the

lands as they were negotiated, as had been decided upon, as had reached agreement

between all parties, and that any lands that were added later were because they were negotiated later, that they

were approved later to be part of a lands package. But the 2022 lands that were shared

at that time were the lands as reflected in the agreement-in-principle and were the

only lands that had been negotiated at that time.

Brennan Day : I think we’ll go back to the process problems. You’re saying that these lands were

added after the consultation process in Union Bay had occurred.

Was consultation reopened at that time, given the scope and size of the additional

lands that had been added with the addition of these woodlots at that point?

Hon. Spencer Chandra Herbert : My understanding is that as additional lands were added to the package, the local

governments, local stakeholders were reached out to. There were on the website updates,

as well, of information around additions and with maps and so on. Really, it was an

iterative process where the bulk was discussed in those open meetings, and then a

few additions were added.

[3:50 p.m.]

We were clear, my team was clear at those meetings — both in public and, I believe,

in writing as well — that this was not the complete land package, that there were

still some more that would be added in through future negotiations. That was expressed

at that time.

Brennan Day : Given the process problems we’ve discussed today, is the minister satisfied that the

multigenerational woodlot holder, who said he was first told there would be no negative

effect unless he agreed or was suitably replaced, and who was later told the decision

had been made and his licence would effectively be lost on a may-replace basis, was

treated fairly?

Again, I’ll ask the minister: what timeline does this ministry and the Ministry of Forests have at getting some resolution to this? Because, again, I can’t, in good conscience,

vote for an open-ended question when it comes to something like this. This sets a

nasty precedent that small woodlots near communities like mine and in other areas

of the province are going to be used as really easy bargaining chips going forward.

It’s a sticky issue but these are community forests that are used by multiple communities

in this province. If we are putting them on the table, we are going to have a hard

time properly managing those forests going forward if they can be negotiated away

without just compensation.

I’d just like to see what the minister is going to do and give us some sort of timeline

on when this is going to be resolved. It does seem like bargaining was started in

good faith. It doesn’t seem like there’s any malicious intent here. But at the end

of the day, we have an open-ended question on a treaty that is now going for final

ratification to this House. I think that is a question and an issue that needs to

be addressed by MIRR and by the Ministry of Forests in a fair and equitable way to

avoid future problems with treaties that are coming down the line.

Hon. Spencer Chandra Herbert : Again, let’s remember the local context here. This is not just anywhere in British

Columbia. This is Vancouver Island, where, because of the impact of the Esquimalt-Nanaimo

land grants, there is very little Crown land in the Comox Valley. That’s meant that

we’ve had to find creative ways to create a land package while trying to limit the

immediate impacts on small operators.

I hear the member share his frustration and concern about the operators. I know my

team looked everywhere. They sought creative ways so that they would not be part of

the package. But in order to make the package viable, what we’ve done is provide a

guaranteed 25-year term, which continues under the woodlot program. The transitional

measure is really meant to alleviate the impact.

We understand there’s an impact and would allow the operators to transition their

operations if that’s a choice, if they want to move that operation. Certainly, we’re

continuing our dialogue with Forests around how we can support, whether it be a replacement

or some other avenue, if they’re looking to do something different.

But I hear the member’s concern. I’ll continue to work with the Ministry of Forests,

with my team, because I think that, again, we want to make sure that these processes

work for everybody. Treaties, I believe, when done well, lift everybody up and give

an opportunity for new prosperity, which we currently are being denied because of

the existence of the Indian Act and other barriers to that prosperity.

So we’ll continue to do that work, and I appreciate the member’s continued interest

in the file.

Brennan Day : I didn’t hear a commitment there to a timeline but I will say that this particular

issue goes to the integrity of the process itself, whether it was done fairly, negotiated

in good faith.

There have been memorandums of understanding between the K’ómoks Nation and the woodlot holders that have been since disregarded, yet that land continues

to be part of this treaty.

I would highly encourage the Ministry of Forests…. Again, I’ll put it on all parties

to get to the table on this and resolve this because it is a critically important

step in ensuring the integrity of the process and making sure there are no loose ends

where, again, we don’t want to give the critics of this process the ammunition to

claim that private property rights are potentially at risk in B.C. Certainly, when

it comes to these long-term Crown woodlot licences that are managed over generations,

that is certainly how it will be seen by critics.

[3:55 p.m.]

We’re going to move on now, since you mentioned the Dunsmuir land lease and the E&N

lands, which, we can all agree, was a bad decision and, we can all agree, should be

open, public Crown land. If we want to have that discussion to reopen that and protect

the watershed in the Comox Valley, you have my absolute full support for that particular

conversation. I don’t think Mosaic will back me up on that, but that is certainly

a massive concern in the Comox Valley.

We’re actually going to be talking about the Island Rail Corridor, the E&N Railway

right away. I want to focus on this through the lens of clarity, continuity and process

again, because I think there are two levels to this issue.

There’s the big-picture level, which is whether the province has done an adequate job of preserving

the integrity of the old railway corridor as a contiguous public asset for future

transportation, future commercial rail, future passenger rail or, at the very least,

a continuous multi-use trail. We have seen the impact in the south Island when that

route gets broken up, limiting our options for much-needed public transportation on

Vancouver Island.

Then we need to look at the very practical local level, where businesses and property

owners in places like Courtenay are dealing with immediate uncertainty over access,

rear servicing, and who actually has authority over that land. From the outside, it

certainly looks like underused chunks of property that are just backed onto by several

businesses in Courtenay, on Piercy.

I’m going to be very careful here, because I did upset K’ómoks First Nation when I advocated on behalf of the businesses because they were represented

with the Island Corridor Foundation, who is now managing that property. However, they’ve

had legacy, grandfathered access to the rear of these properties along the Comox rail

corridor that runs through the city of Courtenay.

What I find interesting, however, is, at that time, it was identified by KFN that

that property was potentially under treaty. I do not see that specific property included

in this treaty. However, I do see several future additions noted here that are Island

Corridor property.

I’m just wondering how the treaty team is going to deal with the Puntledge 2 rail corridor, the Pentledge 2 expansion lands. That’s on the other side of the

river. There’s never been rail there. I don’t think that’s particularly contentious,

but it does limit the possibility of rail going north of the Comox Valley, east of

the Comox Valley.

The Piercy Road accommodation parcel, the Southlands rail corridor…. Probably the

most important one is the

section through the Union Bay lands, because that does cut

the potential for rail, effectively, to the north Island in half because it would

affect the continuity of that corridor.

What consideration has the treaty group given to the Island corridor? We know that

there are other sections that are under a bit of a back-and-forth bun fight over who

will manage it going forward. If we lose the integrity and continuity of that corridor,

we lose the potential for rail on Vancouver Island forever. There was a reason they

protected it. We may not like it. I’m just wondering what the position is.

Hon. Spencer Chandra Herbert : Yes. I, too, am interested in the opportunities of that Island Rail Corridor. I know

down in the south Island they’re talking about kind of a reconciliation pathway. They’re

looking at other opportunities. It certainly does feel like an opportunity, but it’s

a challenging one for sure, given the legal landscape, given the lack of use, given

many years and so on.

I think the parcels the member has identified are approved for pre-addition to the

treaty, but K’ómoks would have to decide to purchase those lands, so they’re not currently owned by K’ómoks.

[4:00 p.m.]

In addition, I believe Island Corridor Foundation would have to agree to sell those

lands. And to my understanding, in terms of their current framework and their current

approach, I find it difficult to believe they would sell unless there was a commitment

to continued access, whether it be for rail or pathway or other opportunity in the

future.

Brennan Day : Given that those private lands could have been protected through a statutory right-of-way

provision, which is…. You know, we see that all over this treaty. I’m just wondering

why that option wasn’t chosen to protect the integrity of that corridor through these

lands. If it doesn’t get used, it doesn’t get used.

Again, my parents have an E&N right-of-way right through their property that’s been

there…. I doubt there’s a train going into Dove Creek any time soon, but the possibility

was there, and that’s why it was left open. I do think it’s extremely important that

we protect that property.

Was there a choice? Was it because ICF is managing this corridor now, and it couldn’t

be protected as statutory right-of-way? What assessment was given in this treaty?

There are several piecemeal chunks as we move along the treaty map that are potentially

affected, as you say, for future purchase.

Hon. Spencer Chandra Herbert : It’s a very interesting question, and it’s one that speaks to, I guess, a question

of how government, over many years, has chosen to operate in terms of pre-approved

additions to reserve lands. I think historically, the approach when land has become

pre-approved for addition to reserve is not to put a whole bunch of conditions on

it as it’s the pre-approval to reserve. There may be future interests down the road.

I think there’s some question which I don’t have an answer to yet, but I would be

interested in getting a further answer on it. It may take some time with legal briefing

and so on. I don’t want to waste the member’s time here today.

But in terms of the conditions upon the Island Corridor Foundation as well, in terms

of what expectations and legal obligations they have when it comes to the opportunity

for sale…. For example, what obligations they have in making such a choice may well

preclude some of the things that could happen on that land. I’ll see if I can get

a fuller response to the member post–this discussion.

[4:05 p.m.]

It’s an interesting question that certainly I want to engage with as potential other

treaties up and down the Island make their way through systems or discussions or negotiations.

Brennan Day : It would be great if we could open that broader discussion. Again, like I say, it

has become a bit of a strange dispute in a certain number of businesses that have

had historical access to what effectively was Crown land. Now that that Crown land

is being traded away in treaty, which is fine, it’s creating some jurisdictional problems

with ICF, the K’ómoks First Nation, the city of Courtenay and these business owners who effectively were

told by ICF to pay $5,000 to access the back alley that they’ve been maintaining for

30 years, which is just prickle bushes and dirt lot.

Then K’ómoks got upset at me for advocating on behalf of businesses, one of which is an employer

of about 50 individuals, Natural Pastures Cheese, which has some amazing products

from the Comox Valley. I think it’s very important we have a reasonable discussion

around this.

I do think the missed opportunity, if we break up that rail corridor, cannot be understated,

whether it’s through treaty or otherwise. That is in the benefit of everybody on Vancouver

Island, First Nations and otherwise, to maintain that continuity and make sure that

it’s not used as a bargaining chip in treaty. Unfortunately, in this, those lands

have been included for future use. I understand that it’s only a possibility. I do

think that there was a lack of foresight in just saying that those strange cut-throughs

are off the table so that we can maintain that continuity for our future generations.

I think I’m going to potentially leave it there. I do want to close my line of questioning,

and I think I’ll probably have a few more once the stakeholders that I’ve spoken about

today have a chance to dig into the conversation today.

I did want to discuss the Queneesh mobile home park, and I want to do so very carefully knowing that it is not a treaty

issue, necessarily, but it is certainly having a substantial negative impact on a

number of individuals at that park.

If the minister is unaware of the background, the park has given two-year notices

of eviction to the tenants of that trailer park. They have been told it will be up

to them to remove their trailers. That will be on their cost, and it has effectively

reduced the value of those trailers to zero in most cases, because they are not movable.

We have an extremely vulnerable population living in that trailer park, many retirees,

many struggling with cancer, many individuals with special needs. Over 100 people

in 37 homes have effectively lost their nest egg.

Now, I do not want to put the blame on K’ómoks. We’ve seen what happens down here with Songhees in a very similar situation that

was tested in court in which they’re meeting their obligations as buyer beware on

First Nations leasehold property. The reality, however, is much different because

they are not protected by the Residential Tenancy Act. They are not protected by the

provincial Mobile Home Act. They are not protected, and certainly the federal government

will not get involved in this dispute because of the precedent it will set. And that

actually doesn’t matter to those hundred people.

Can the minister explain exactly what is meant by the replacement of Queneesh mobile

home park? This

part is in the treaty because it is mentioned specifically: “…lease

on the effective date, what legal rights or continuity that replacement lease provides,

whether it changes anything for the existing residents” — because, again, we’re on

a 22-month timeline for their eviction.

We don’t know when treaty will be settled. My assumption, again, is that the leases

were terminated so that they didn’t overlap from federal jurisdiction to K’ómoks. I think that’s a reasonable assumption based on what’s happening because it’s cleaner

that way. Again, certainly not for the 100 residents and 37 houses that are now worth

a dollar that were on the market, some of which were bought 12 months ago.

So there is some question about being upfront with how long that lease was going to

last. Has the province considered the park residents’ circumstances when agreeing

to the replacement structure that is noted in the treaty on the Queneesh mobile home

park?

[4:10 p.m.]

Hon. Spencer Chandra Herbert : The member is correct. Of course, the decisions of the K’ómoks Nation are the decisions of the K’ómoks Nation. They’re not the decision of the B.C. government. Any references to leases,

in this case to the mobile home park, simply reference that, yes, if there is an agreement

that is being held at the federal level, which then transfers through treaty effective date into K’ómoks decision-making ability, as is the case with this park in the sense of the legal obligation

and how that structure works….

But the province did not have any involvement in management decisions or decisions

K’ómoks made around what they were planning to do with that property or other leases or agreements

in that sense. Certainly, that would have been held at the K’ómoks Nation level as it is very much their territory, their lease, their discussion.

Brennan Day : Can the minister explain exactly what is meant by the replacement of the Queneesh mobile home park lease “on the effective date” — that’s the wording from the treaty; what legal rights or continuity that replacement lease provides and whether it changes

anything for the existing residents of the park legally; and whether the province

considered the park’s residents’ circumstances when agreeing to that replacement structure

in the lease?

This is obviously a well-known facet of the current K’ómoks land. They’ve been there for a considerable amount of time. There are 100 members

there. There are 340 members for K’ómoks. So it is a substantial population on that land base, and I think that just needs

some clarity in terms of why that decision was made and the wording.

[4:15 p.m.]

Hon. Spencer Chandra Herbert : Some legalese that I had to sort through. In the minor-changes provision in the treaty, there is the

possibility for minor changes. So in the case of a lease that a nation might have — it could be, as the member mentions

in this case, the trailer park; it could be a business lease, another lease — it’s

currently listed in the appendices.

However, should a lease finish before treaty effective date, through the minor-changes provision, that lease could then be deleted from that.

Now, if the lease continued, if there were an interest that’s ongoing in that interest, then that allows that provision to continue

post-treaty as well. That’s why it’s listed currently, because it was a snapshot in

time, in the sense that that lease and that obligation is there. How they choose to

arrange that interest over the next while will impact what change could exist at treaty effective date, if any.

Of course, that is common in these treaties, common in legal agreements, in terms

of ones that take place over time, like this one does.

Brennan Day : Thank you for the response, Minister. I guess that does explain the timeline that the residents have been given. I feel that all government agencies need to be

made very aware of the problem that is currently unfolding in that trailer park. The

trailers largely are unmovable; they are now valueless. In fact, people will be on the hook for their disposal if

they don’t abandon them. People have mortgages owing on property that is now unsellable.

I understand that this is ex parte, probably, to the treaty itself, but the timing,

as you’ve just outlined, certainly driven by this treaty, has triggered that eviction,

to clean the slate. I don’t hold that against K’ómoks, but I would draw the attention of both your ministry and the Ministry of Social

Development to the 100 individuals that are going to be displaced.

We know that when Songhees undertook the same action, many seniors did end up living

in cars on the streets. There are currently three Songhees, former residents of that

park, living in tents. So we understand that capacity. I think it is incumbent upon

governments to ensure that those individuals are properly taken care of through the

system, because through no fault of their own, they are being caught up in what, I

would say, is an unintended consequence of this treaty action.

Although it doesn’t need to be considered — and the legal grey area is clear, unfortunately,

that nobody has responsibility, either through the RTB or the Manufactured Home Act,

to deal with this — it will be left up in the air. Again, it leaves a bad taste in

people’s mouths.

I’ll go back to the woodlot licences again, and I will restate, for the record, that I agree with the minister that this does not affect private

property. However, these unresolved issues can be conflated into something that they

are not, given the background of what we are going for. I believe it should be incumbent

upon everybody to ensure that those issues are taken into account, because people

are struggling with this, whether it’s the woodlot licensees or the people that are getting displaced.

With that, I’d like to thank the minister for his time. I may be back in the next

couple of days to ask some follow-up questions on specific responses, and I’ll hand it over to the member of the Green Party.

Hon. Spencer Chandra Herbert : I thank the member for his engagement on this. Just to be clear on one issue that

I wanted to be absolutely certain of, it is the Island Corridor Foundation that owns

the land that the business owners you’ve mentioned have the challenge with. The question

is not K’ómoks at this stage. Even should treaty pass, it will still be Island Corridor Foundation.

So that issue that the business owners have is still very much with Island Corridor

Foundation. That may change in the future but certainly not in the near future, so

I’d urge him to pass that on to his constituents so that they know who to engage with

on that one.

I appreciate the questions.

[4:20 p.m.]

Brennan Day : My apologies. Just to confirm then, there is no interest currently from K’ómoks that

is in this treaty in terms of property that borders onto Piercy within the city of

Courtenay that is under either current or future claim by K’ómoks under this treaty?

If you could just confirm that for the record, I think that would make the negotiating

parties a little more clear.

Hon. Spencer Chandra Herbert : As I stated earlier, it’s a pre-approved addition, but they have to purchase it. So

it’s not pre-approved in the sense that it’s already been approved, treaty passes,

it moves into treaty land. It’s land that…. At some point in the future, should the

nation want to make an offer that is then accepted, it would then start the approval-to-reserve

process or approval-to-treaty-lands process.

But that would take a few more steps than…. It’s currently not treaty land. It’s pre-approved

to become treaty land should a purchase be made and, of course, the seller be willing

to sell it.

Jeremy Valeriote : I just have one outstanding question from last week.

Just to really quickly recap, we all recognized this treaty has been in the works

for 30 years and an incredible amount of work has gone into it. I mentioned, in my

second reading comments, our role as MLAs sits squarely within the legislative process,

so this means most of us in this room had not been up close with this treaty until

very recently, which makes sense.

With that in mind, I’m wondering if the minister can detail how much time and what

form of notice was given to neighbouring First Nations that this treaty act would

be brought to the provincial Legislature for consideration.

Hon. Spencer Chandra Herbert : I appreciate the patience. There’s a lot of work that could be shared in terms of

an answer to that because…. One staff said: “Well, 2008. Go back then.” But to be

realistic, that was very broad at that time.

[4:25 p.m.]

To get up to more close to present-day…. And 2008, I think that’s when I joined this

place, sorry. To get a little close to the present day — yesterday’s man here, oh

boy — would be to say that in 2024, we had the initialling ceremony, which was…. I

know, certainly, neighbouring nations were well aware of that.

In that process, it certainly was well known and shared that we do the initialling.

Then the next step is nation ratification, so community vote on the treaty. At that

point, of course, in 2024, there was a public, online version of the treaty, shared

for anyone to see, including a land package as well.

In 2024, as I said, there was the initialling, nation ratification and then everyone

knows the next step to that, after nation ratification, is provincial ratification

and then federal ratification and then treaty effective dates. It’s well known, certainly

in the negotiation world, that that is the process. That has been the process B.C.

has followed for many years in terms of treaty implementation and shouldn’t have been

a surprise to anybody.

The Chair : Thank you. Actually, the Chair is going to call a ten-minute recess. We’ll return

at 4:35.

The committee recessed from 4:26 p.m. to 4:36 p.m.

[Sunita Dhir in the chair.]

The Chair : Good afternoon, Members. I call Committee of the Whole on Bill 20, K’ómoks Treaty Act, back to order.

We are on clause 3. Shall clause 3 pass?

Interjections.

The Chair : Okay. Let’s take a brief recess until we have the quorum.

The committee recessed from 4:37 p.m. to 4:38 p.m.

[Sunita Dhir in the chair.]

The Chair : Good afternoon again. I call Committee of the Whole on Bill 20, K’ómoks Treaty Act, back to order.

We are on clause 3.

John Rustad : I appreciate the minister’s answers to many questions from this afternoon. We talked

last week about the value of the treaty. I know the member from Comox asked the question,

and the minister responded accordingly, in terms of the amount of money, the breakdown

of the money, the amount of hectares, all those kinds of things.

But I did ask a specific question of the minister last week, and I’d like to repeat

the question because we didn’t really get an answer, which is the value of the land,

particularly the land that becomes title land. Ultimately, that becomes the whole

package in terms of the value of the deal, so I just would like to give the minister

an opportunity to provide some numbers, if he could, in terms of the value of the

land component associated with the K’ómoks treaty.

[4:40 p.m.]

Hon. Spencer Chandra Herbert : I’m advised, similar to the answer I gave last week, that again, the common practice has not been that that land value is shared. It’s a cabinet confidential

number, as it was, I’m told, under previous governments as well. I certainly can take

other questions around land and how we chose packages, parcels, etc. But in terms

of the valuation, I’m told that is confidential.

John Rustad : I understand the sensitivity around this. I’m just going to throw some numbers out

there. The minister can say yes or no or not say anything.

The number is important. When you start talking about British Columbians, start talking

about the size of this, the value of this treaty overall, start talking about what

it would be if all 204 nations signed treaties…. It’s important to have some numbers

around this just so that British Columbians understand what we are doing here in terms

of the treaty and what we’re getting in terms of the treaty, as well as what we’re

providing.

The number that the minister has provided was a total of 33 square kilometres in total

land. Of course, that’s not land. That is the total area of the treaty.

So 10.4 square kilometres of private land or title. I call it title land. The minister,

I believe, calls it treaty lands as opposed to treaty territory. So 10.4 square kilometres

of that and then another 18 square kilometres that could be potentially purchased

by the K’ómoks Nation as pre-approved additions. Let’s leave that out because that’s not part of

it at the moment. Let’s just talk about that 10.4 square kilometres of land that is

considered treaty land or the equivalent. In the rest of the world’s understanding,

around the province, it’s private land.

That land…. When you look at property value in the Comox Valley of undeveloped land,

in other words, land that doesn’t have a home on it or a building of some structure

on it…. It’s just a lot. The average price for a lot is around $350,000 to $450,000,

and those lots vary in size between 0.1 and 0.3 of an acre. So let’s say an average

of 0.2 per acre at $350,000. Take the low end of the value of that land.

Now, that’s about $1.75 million per acre. The 10.4 square kilometres is equivalent

to 2,570 acres, roughly. When you do the math, that’s equivalent to about $4.5 billion.

At 350 people, that’s equivalent to $13 million per member of the K’ómoks Nation in just the land value. Plus there’s a cash component that’s on top of it.

The reason for asking the value is it’s important to know, for the people of British Columbia, what is being put on the table in terms of the value

of this treaty on a per-capita basis. Now, those numbers may vary, and I understand

some value…. Some land may be worth more than others in terms of what that 10.4 square

kilometres is. But I do know, and we’ll get into looking at specific packages piece

by piece, that there is significant value in that they’ve chosen which lands to include

as part of this.

But at that rate of $13 million, roughly, per person, when you start doing the math around the province, if all nations

were to sign treaties, we’re talking about a value of around $2.6 trillion in total

value for nations, for the 200,000 or so Indigenous people in this province. It’s not an insignificant number.

[4:45 p.m.]

So perhaps…. I know the minister is saying that these numbers are confidential. I

know these numbers were batted about when it was the Lheidli T’enneh treaty in Prince George, which was not ratified. But when it was the Tsawwassen treaty….

I don’t recall seeing the numbers around the Maa-nulth treaty or the ɬəʔamɛn treaty, but it’s easy enough to do the math within those areas as well.

I think there would be value if the minister could explain to the people of British

Columbia and the people particularly in the Comox Valley what that number is in terms

of treaty settlement so that then we can really get a better understanding of what

it is that British Columbia and Canada, the taxpayers of British Columbia and Canada,

are putting on the table to create some form of certainty through the process of treaty.

Hon. Spencer Chandra Herbert : I thank the member for his question. I think, certainly, I understand his interest

in speaking around the value of land and what the value would be to the K’ómoks Nation.

I think it’s just as important to look at the value of the land that we all share

in this province and the value that it has lifted up, the economic opportunity, the

trillions upon trillions that have been made historically in this province going back

to time of settlement, in that sense.

Earlier we talked about the E&N land grant and the impact that that had certainly

on the K’ómoks People and the K’ómoks Nation in terms of territory, ability to use the land. When the member looks at the

size of the K’ómoks historical use area compared to what we’re looking at in this treaty, it really is

about….

[4:50 p.m.]

It’s quite a minute portion — would still be described in that way — in the sense

of having exclusive use as we’re talking about in this treaty.

I think the other thing is that it’s challenging, of course, when you try and extrapolate

one type of property and use it as a stand-in for unserviced lots, rural lots, lots

that that really can’t be used because of access. To say that they’re all the similar

price range, I think is challenging.

Again, I would come back to that this treaty unlocks the opportunity for (1) greater

prosperity in the region, (2) more certainty in the region, as it’s clear what is

in the treaty, what is not and what is certain outside of the treaty lands, the broader

treaty area, how it works, how it operates.

It leads to, I think, the unlocking of opportunity in the Comox Valley that we haven’t

seen before. That’s because, in part, the nation was locked out of that opportunity,

which created uncertainty in and around the Comox Valley, which is being addressed

through this treaty.

John Rustad : I thank the minister for that answer, and I understand the sensitivity in the issue.

You’re right that there are obviously huge differences between serviceable and unserviceable

access, non-access, but I also know that looking at the treaty package, looking at

the lands selected, the lands were selected for a reason. That was to be developed

or land that has those potentials. There wasn’t interest in land that didn’t have

access or those types of things.

Now, there’s a mix. There’s some other land in there, but the bottom line is it’s

a lot of money per person. When you do the math there on the private property, $2.2

trillion roughly, maybe $2.5 trillion, I think, is the total value of private property

in British Columbia today. I’m pretty sure if you go around, the average person in

British Columbia doesn’t have $13 million dollars in value in their property.

There’s obviously a pretty significant amount of value that is being created here.

Yes, for the certainty for the province, although they still have to go through all

the consultation and accommodation and everything else that’s required. So nothing

really has changed from this treaty for the benefit of British Columbians, only that

there is defined structure to this, but

section 35, essentially, all still applies.

In any case, I’m not saying that a treaty isn’t a good thing to do. I’m obviously

supportive of the treaty and treaty process, but it’s important to put the value in

terms of what it is that we are achieving and that value that’s in there for British

Columbians and what we are paying for that. Because as the minister is well aware,

204 nations around the province — the amount that is sitting there is a big price

tag.

Now, the argument you could say is “well it’s land; it’s not money,” that side of

things, but it’s still a tremendous amount of opportunity. I would agree with the

minister when he says the K’ómoks Nation, as well as all First Nations, historically, have been shut out. They haven’t

had the same opportunities ever since Confederation, so there is a wrong that’s there.

There’s a value in terms of it.

I don’t think we should be shy talking about that value so that British Columbians

understand that this is the price of reconciliation. This is the price that we need

to do in British Columbia. I don’t think we should hide that number from them. If

British Columbians support that, great, and I think the majority of British Columbians

probably do support the idea of treaty, but, at the same time, we need to be upfront,

just letting people know.

It’s unfortunate that the government has made the decision. I was part of previous

governments. I don’t recall that ever being really talked about or out there, although

I do remember seeing the numbers back in the day when other treaties had come forward,

but I think it’s a policy change that government should think about just in terms

of transparency.

At the end of the day, especially in the environment we’re in in British Columbia

today, where there’s a certain amount of distrust that’s going on, particularly with

DRIPA, with everything that’s happening, it’s important that we make sure that people

in British Columbia understand what this is and what it isn’t. Numbers are part of

it, and so anything that’s hidden gets blown out of proportion. Who knows how that

plays out? Without facts, numbers get out there, and there could be push-back because

of it.

[4:55 p.m.]

With that, I recognize I’m not going to get the number from the minister in terms

of this, and I respect that. Unfortunately, the minister’s hands are tied because

of government policy, but it is a little unfortunate just in terms of it. I think

it’s an important number to think about, just in what reconciliation means and how

we achieve it everywhere around the province.

For example, a cash settlement — in some areas that don’t have the land value, that

don’t have a thing, is that an appropriate thing? What would that look like per person?

What does that create, in terms of things?

There are many First Nations in this province that really don’t have the same type

of land opportunities that K’ómoks does, or that Tsawwassen did, which doesn’t have the same sort of value. There are

other ways that reconciliation could potentially be achieved to conclude reconciliation

in the province. Like I say, I just wanted to put that on record, through this. In

terms of the process, I think it’s important to have these things out there as part

of the conversation.

With that, I will pass it over to my colleague from Columbia River–Revelstoke.

Scott McInnis : I think my friend from Nechako Lakes raises an interesting point here.

I just want to address something before I move into my line of questioning that I’m

going to dig into here. Perhaps it’s my lack of experience in the role and understanding

some of the processes that government follows, etc., and having an opportunity to

learn that. I think it’s really important to get straightforward, on the record.…

I feel like my colleague probably knows this process a little bit better than I, but

I still think it’s interesting to address, because I agree with everything that he

said. Never more than today, transparency is very important as we’re doing this. It’s

actually critical to the process.

I think there’s a hunger in the public to have a greater understanding of what the

shared cost of reconciliation truly is. I firmly believe, if we’re going to pursue

a process such as treaty, that we are as upfront and open with the public as possible,

because I feel like that lack of transparency either draws people to their own conclusions.…

Some people would maybe choose to make things up, and others get very frustrated about

that.

I just want to ask the minister a question, for the record, following up on my friend’s

question, talking about cabinet confidentiality when it comes to the value of the

land in the land package. Could the minister confirm that, yes, in fact, cabinet has

what’s called a really good estimation of the land value for this treaty package and

it is under cabinet confidentiality not to share that with the public?

[5:00 p.m.]

Hon. Spencer Chandra Herbert : Well, as would have been the case when my colleague the member from Nechako Lakes was the minister, it’s still the case here. Cabinet discussions, of course, are confidential.

Scott McInnis : I understand, I think, the answer from the minister. I just think it’s a difficult

policy to pursue when the public surely, at some point, is asking and will be asking

about the value of land transferred under the treaty, and the answer is: “That’s confidential

information.”

I just certainly don’t think that that is a helpful policy to pursue. I don’t think

it’s in the best interest of all British Columbians. I certainly believe that people

can deal with the truth when they have it. It’s the lack of truth which, again, frustrates

people, has them draw their own conclusions, make things up, like I said.

I’m going to ask the minister: does he feel like in this treaty, the K’ómoks treaty, that not disclosing the land value is helpful in the public engagement with

reconciliation in general?

Hon. Spencer Chandra Herbert : As much as I could share my feelings about a whole bunch of things, feelings aren’t

really relevant to the actual legislation itself that we’re here debating and the

treaty itself.

I would say, in terms of the question of transparency, that I did hear from a number

of members in second reading where they talked about transparency. They, I think,

made the claim — I remember one person saying — that they’d only been given one week,

or maybe it was two weeks, to be able to see the treaty, that we had kept the treaty

away so no one could see it, that we should have given more time.

The treaty itself, to be clear, including land, was publicly available since 2024,

including what the land package looked like, so people could think about the land

pieces involved. They had the opportunity through town halls, open houses, online

and more to engage on these issues. So very much, we do care about what people think

in terms of the values they place in their community.

Given the tight land package that exists in the Comox Valley because of the E&N land

grant and our commitment, an ongoing commitment, to ensure that private property is

protected, of course, we’re looking at a very limited set of lands to consider. So

certainly, that’s why we want to make sure that the public is engaged on those questions.

The questions the other day around the Boy Scouts and if their camp was going to be maintained, questions around how certain islets might be used — all those

things go into our consideration when we do this work. Certainly, considering what

the public believes and how they feel about land that might be part of a package is

something we take into consideration quite deeply.

Scott McInnis : For the record, that was me that was complaining about the time to review the treaty

before debating it. I’m a member of the Legislative Assembly and critic for Indigenous

Relations and Reconciliation. I was, up until the time that this treaty was introduced,

obviously busy with several other issues with the Indigenous file that this government

is struggling with.

[Steve Morissette in the chair.]

I didn’t have time to casually go through the treaty, not knowing when it was going

to come forward.

[5:05 p.m.]

For the minister to essentially say that, well, it was on a website since 2024, and

they should have just figured it out, I think is really unfair and disingenuous to

the public, because the treaty was posted on a website somewhere. If I didn’t have

an opportunity to look through the treaty and engage with it, certainly Joe Public

probably didn’t even know it was existing.

So that was a very interesting answer from the minister, to essentially say: “Well,

the public should’ve just figured it out two years ago when it was posted on our website.”

I really don’t think that that type of answer is steering towards what I’m trying

to get at here, that probably making an effort to provide a little bit more information to the public

here would be ultimately helpful in this process.

I know the minister probably looks online, and there are certainly some unfair things

that are being said about the treaty and some vitriol pointed toward the K’ómoks Nation

and others, which is certainly unfounded. But when it comes down to the basic premise

of understanding the value of the land that the province is transferring to the First

Nation as part of a treaty, it’s not a far-out idea or something people should be

ashamed about for asking.

I’m quite disappointed to hear that answer from the minister, that people should’ve

just looked it up on the website two years ago, figured out how much land was there

and maybe drawn their own conclusion into the dollar value. That’s not good governance,

and that’s leading to some of the issues that I know the minister doesn’t like very

much and that I don’t either.

I’m going to ask if, for the minister, for his government, for this treaty and the

subsequent treaties coming forward, there is a desire to change the policy around

disclosing land package value so that the public at least has a chance to digest transparently

what is happening with treaty.

Again, it’s a done deal, essentially, right? The land package has been presented.

This isn’t something that’s in secret, but the value of the land is.

And I get it. My friend from Nechako Lakes was part of a government that had that process and that protocol in place as well.

But I also don’t think that “because they did it from 2001 to 2017” is a good reason

to continue that, especially now with access to media. I’m sure when Nisg̱a’a was signed, most British Columbians didn’t even know it was happening. Now people

are keenly aware of this stuff.

So I’d like to ask the minister: is there a desire within his ministry to at least

advocate, on behalf of his ministry or at the cabinet table, that disclosing this

information is extremely important to the public?

Hon. Spencer Chandra Herbert : Just to be clear, in terms of the suggestion that it was just put up on a website

and people should just go look at it, there was actually an incredible series of town

halls, community meetings, engagements with local government, local businesses. There

were question-and-answers, quite extensive in the region, so much so that the mayor

of Comox, the mayor of Cumberland, the chair of the Comox Valley regional district,

the city of Courtenay all came out to say they support the treaty.

They support the engagement work we’ve done on the treaty. They supported the outreach

and how much they’d been involved in the process so that they could represent the

region in these conversations around land.

[5:10 p.m.]

There was actually quite an extensive community consultation on it where people were

directed to the website for further questions on the treaty.

Probably one of the most important things that we’re involved in as a ministry is

the treaty work, because these are, as the member knows now, quite comprehensive arrangements

and agreements. That work didn’t occur when the treaty got brought to the Legislature.

That work has been underway for quite some time and certainly worthy of doing the

work to engage with those that have been involved in this for such a long time.

The question certainly is one of cabinet confidence. I don’t get to make a decision

one way or another on behalf of cabinet. That was the way, as the member mentions,

under his colleague as well. Certainly, it also involves a question of Canada, and

the treaty partner as well, in terms of agreements on what can be shared when. Certainly,

I’ll take that back under consideration, because I want to find a way to build even

more of a case for treaties and for the prosperity and certainty that they will unlock

in this province.

Scott McInnis : I appreciate the minister at least acknowledging on the record that it is an issue

that’s important to people. I’d be curious — I’m not going to ask it on a question

— if the people in the Comox Valley, if the government has any data…. Was there a

survey sent to every household or anything like that, that provided any feedback as

far as: did they know the treaty was happening? What do they think of certain high-level

components of the treaty to see exactly how well…?

I get it. The mayors were engaged and supportive. That’s fine, but that’s not necessarily

speaking for the broader community of tens of thousands of people who live there.

I’m not going to bother asking that in a question, but it would be interesting to

know. I think, certainly, outside of that area…. A treaty is an agreement between

Canada, British Columbia and the K’ómoks Nation. Specifically for this one, that involves

Canadians, British Columbians and the K’ómoks First Nation. I think, certainly, outside of the treaty area, nobody had any idea

that this was being brought forward.

I think it’s just really important now that people are engaged, the treaty has been

tabled in the Legislature and we’re debating it here today…. People want to know this

information. I think it’s extremely important that the specifics around things like

a land transfer value…. At least the public has an opportunity to know what that is.

I’ll just wrap up this specific line of questioning. Can the minister just confirm

that the public will never be made aware of the total land value package from the

K’ómoks treaty?

Hon. Spencer Chandra Herbert : The member may learn about me that I don’t predict the future, so I’m not going to

confirm that there will never be an opportunity. I cannot predict what will happen

tomorrow, let alone today. So I won’t engage in theorizing about what may occur in

the future.

But to follow up on the discussion around who was engaged during the negotiations,

there’s quite an extensive list, I know. In the spring of 2022, approximately 300

letters were sent to owners of property adjacent to proposed treaty lands. Canada

and B.C. have been consulting around the overlap in shared territory interests on

an ongoing basis. We’ve held briefing sessions with all treaty negotiation partners,

delivered presentations to local governments, processed timelines, proposed land package.

Engagement has continued as we discussed in our earlier questions.

There were several local government presentations, four open houses with 340 participants,

four community events for further discussion. There was a treaty engagement, public

engagement.

[5:15 p.m.]

A what-we-heard report described what had gone on, participation rates, feedback,

questions collected, along with responses from the partners. Of course, in preparation

for the spring legislative session, we continued engaging with following interest

holders. So local government engagement, again, continued through this year with Comox

Valley, Campbell River and Strathcona regional district.

Additional letters went to other local governments to see if they had interest and

wanted to be engaged on these questions, including the Islands Trust and the village

of Sayward. We continued that work with interest group holders, groundwater licence,

Crown land tenure holders, road access users, other interest holders, chamber of commerce,

other private business owners that had interest, NGO engagement, non-governmental

organizations — Comox Valley Watershed Society, Nature Trust, Tsolum River Restoration

Society — and there’s more.

There’s quite an appendix of files that I could relate to, but it was extensive in

the region. I know the member maybe referred to the broader B.C. question. I can say

that instead of “nobody outside of the region knew about it,” in fact, I’ve heard

from quite a few. Maybe it’s just because of my ministry, but local government interest,

NGO interest and, of course, other First Nation interests in the Comox Valley treaty

as well.

So quite a bit, but it just may not have crossed the circles that the member might

be working in. Fair enough. There’s always more to do to reach people to ensure that

they know about what we’re doing with treaty, what we’re doing with local First Nations

and how it could benefit them and in their communities.

Scott McInnis : I want to shift over. I’m going to go through a line of questioning about a specific

section of the treaty,

chapter 13, around co-management. This is kind of an interesting….

[The bells were rung.]

Sorry, Mr. Chair. I don’t like to talk over the bells because I lose my train of thought.

There’s quite an interesting

section here around co-management, as I mentioned, and

I’m going to read a couple of things, pick them apart from the treaty, into the record

in a moment. But as I understand it, and I invite the minister to correct me if I

misunderstood, we have the treaty area, obviously the treaty settlement lands within

the treaty area. But this co-management

chapter deals with the broader treaty area,

which could be defined as the asserted traditional territory of the K’ómoks People,

K’ómoks First Nation.

It appears to me that this is one of the elements of the treaty which is new to modern

treaties. I know in just doing a brief search of some of the other modern treaties,

there were things like… I believe they were called joint fisheries committees with

ɬəʔamɛn and Tsawwassen and Nisga’a, etc., setting up tables to look at how fisheries could be looked at and potentially

managed between the nation and the province.

But the co-management provisions here seem to be a new element of the K’ómoks treaty,

and again, it broadens out into the wider asserted traditional territory.

I’m just going to read the principles under

chapter 13 of co-management to get started,

and then I’ll go through my questions and kind of back up here a little bit, because

I think there are some things we need to dig into to really understand what this means.

Principles. No. 1: “The development of co-management agreement in accordance with

this

chapter will be based upon (

a) implementation of the United Nations Declaration

on the Rights of Indigenous Peoples, including aiming to secure the free, prior and

informed consent of K’ómoks for land and resources decisions within the K’ómoks traditional

territory; (

b) K’ómoks exercisable

section 35 rights; and (

c) recognition of K’ómoks

Aboriginal rights and title, including the inherent right to self-government in accordance

with this agreement.”

[5:20 p.m.]

Now, the first thing I find interesting…. I know we kind of canvassed this a little

bit on Thursday, looking at

section (a), and the minister had delineated between what

UNDRIP says and what they have here in the treaty, “aiming to secure the free, prior

and informed consent.” But under UNDRIP

article 19, it’s “in order to obtain free,

prior and informed consent” — not the “aim of securing.”

This is interesting for this co-management chapter, because if there aren’t agreements

made under this co-management provision, it goes to binding arbitration. It’d be really

interesting for the minister to explain how principle 1(

a) will be viewed, potentially,

by an arbitrator aiming to secure free, prior and informed consent — and UNDRIP

article

19. Because remember, UNDRIP is an authoritative lens for the

interpretation of this

agreement, which says “in order to obtain free, prior and informed consent.”

So I’m quite interested in this

section and how that would look under an arbitrator’s

lens potentially. Because again, we do have some issues with overlap, obviously, in

the traditional territory of the K’ómoks and other surrounding, neighbouring First

Nations. So having, potentially, in order to obtain free, prior and informed consent….

It could result in legal challenges under co-management agreements.

I’m going to start kind of from a high level here before I get back into the actual

treaty document itself, because I think there are some really important things to

identify on the record here in the co-management

section and some of the language

therein. I’ll start kind of high level, and then we can dig into it a little bit deeper.

How does the treaty specifically define this co-management, and where does that co-management

end and shared decision-making authority begin?

Hon. Spencer Chandra Herbert : To be clear, for this treaty, as of right now, the only proposed co-management approach

is around the estuary agreement.

However, he’s correct. The language of the treaty does allow for that to potentially

happen if the parties agree to enter into a process. Really, what this does is it

allows the establishment of a process to collaboratively develop frameworks and, if

successful, negotiate potential shared decision-making agreements regarding land and

natural resource decisions after the effect of the date of the treaty.

But all parties must agree for any agreements to be entered into, and the treaty does

allow for the consideration of the full scope of shared decision-making context, including

collaboration, co-management, consent and joint decision-making. But it doesn’t obligate

acceptance of any specific approach.

Just to correct something the member said, only a dispute in respect of whether the

parties acted in good faith in the co-management agreement negotiations would proceed

directly to binding arbitration. So it’s really about the behaviour of the parties

in the negotiation, not the outcome of the negotiation.

[5:25 p.m.]

Obviously, if somebody was refusing to answer phone calls, emails, not participating

at all in a process, well, that’s not good faith. So that’s what could proceed to

binding arbitration, if there was the lack of good faith, which is pretty consistent

for legal agreements across the province.

I know the member will have other questions. But again, to be clear, the text of the

treaty is what’s prime, is what’s paramount here, as we discussed last week. Of course,

other interpretive aids can be used. But the text, if it says, “aiming to seek consent,”

that is what we are aiming to do, and that is what the requirement in the treaty speaks

to.

Scott McInnis : I’m just going to take a second here.

Under point 15, good-faith arbitration, it says: “Within 60 days of a party delivering

notice that it is withdrawing from efforts to collaboratively develop a framework

pursuant to paragraph 3 or to negotiate an attempt to reach agreement on a co-management

agreement under paragraph 8, any party may refer the question of whether any party

failed to participate in those processes in good faith to be finally determined by

an arbitration under the dispute resolution

chapter without having to proceed through

stage 1 or stage 2.”

Could the minister just clarify for me, then. Is that saying that if either party

fails to enter into an agreement in good faith that it goes to binding arbitration?

So if there’s a…. Let’s say the province comes up with an idea and presents it to

K’ómoks. They say: “We’re not interested in that.” Could the province then take them

to binding arbitration to enter into that, and vice versa? Is that what I’m hearing?

Hon. Spencer Chandra Herbert : First off, there’s nothing requiring somebody to participate in an agreement. In the

member’s example, if the nation didn’t want to participate in that shared-use decision-making

process, they could say no, and then there wouldn’t be a process around shared decision-making,

because obviously, one party is not participating.

However, if you entered into a process…. Again, let’s say, using the member’s example,

you entered into a process. You were starting to have conversations. You were both

participating in good faith. Maybe you decided, “Actually, this process is not going

the way that we want it to go,” or whatever. “It doesn’t work for us now.” As long

as you participated in good faith, you could say: “I choose to leave this discussion.

I don’t want to continue it.” That would be fine.

Where it wouldn’t be fine is if you entered into a good-faith discussion with your

partner and said, “Yes, we’re going to do these things,” they went away and did a

lot of work, and you did no work and did not actually respond anymore to phone calls,

just disappeared, ghosted them effectively. Well, then there would be a process. Because

they entered into work, they did work in a good faith with you, and then you ghosted

them on the situation.

So that’s where the question of binding arbitration could come in, but the characterization

or suggestion that somehow one partner could force another into the process — that

couldn’t happen, because it has to be reached mutually that you agreed to start a

process and then participate in good faith through that process. It’s really about

protecting from bad-faith actors.

Scott McInnis : I appreciate the minister clarifying that. So it sounds like only after an agreement

has been entered into and by which one of the parties acts in bad faith, then binding

arbitration could be a form of resolution, not one party really wanting some sort

of co-management agreement, the other party disagrees, and binding arbitration is

used to bring the parties together to sign something. I think that makes sense to

me.

With these co-management agreements, do they create legally enforceable joint authority

over land use decisions?

[5:30 p.m.]

Hon. Spencer Chandra Herbert : I’m going to try to clarify one part and then get the member a fuller answer to the

other part.

To be clear, and maybe I wasn’t clear on how I stated it, if one of the parties said,

“we want to investigate a shared use decision–making framework for XYZ,” the other

party is expected to consider it, to take that request as a good-faith request, to

consider it in good faith. So you can’t just blow them off. You don’t have to agree

to do it; you just have to consider the request in good faith and respond in good

faith.

So show your work, that you have considered what the other party is interested in,

and then make your response. If you didn’t, that’s when it could go to binding arbitration.

Just to be clear, it’s not just a…. There is a process to that. to ensure good faith.

I shared a few of the potential decision-making processes which could be established

under a co-management agreement.

They may include: “(

a) collaborative management processes or boards, (

b) collaborative

planning, (

c) consensus recommendations to a decision-maker, (

d) replacement of an

existing decision-maker with an agreed-to joint body or joint decision-maker, (

e) delegation of decisions, (

f) consent-based decision–making, (

g) agreements on policies,

procedures and standards or best practices to be applied or (

h) any other arrangements

agreed to by the parties.”

To be clear, that does not mean that entering into a co-management agreement all of

a sudden changes the law or something like that. In fact, the treaty does not empower

the province and the nation to enter into a joint decision-making agreement without

further approval. So just approving the treaty doesn’t all of a sudden empower the

minister to enter into a whole bunch of joint-management decisions without further

approvals.

Any side agreement negotiated under the co-management

chapter could not, by itself,

alter provincial law in respect of who makes the statutory decision. Side agreements

do not prevail over the provincial law. Provincial legislation would be required to

give effect to any agreement which proposed to alter the statutory decision–maker

— i.e., joint decision-making agreement or the statutory decision–making process,

i.e., consent agreement — for any decision.

[5:35 p.m.]

Now, to show how the difference is, this

chapter talks about creating a legal structure

that could be considered in the future. But in order to use that structure, further

legislative changes would be required if it impacted the statutory decision–maker.

Where we have made or proposed to make a change, for a kind of shared decision-making

process, is the estuary agreement. It’s an example of where this has been done through

the treaty.

The treaty implementation legislation is required to give the relevant parts of that

side agreement the force of law. So it’s built into the treaty, that specific agreement.

It can be used as an example to show that if any future decision-making were made

around land in the treaty area, a similar sort of proposal or process would be required

of coming to the Legislature, sharing how the decision-making process would work and

amending whatever the existing legislation might be to allow that to take shape.

Scott McInnis : I appreciate the minister’s answer on that.

I’m going to ask a similar question just for clarification, using an example, because

I don’t think I understood the last component of the minister’s answer. Just as an

example, let’s say that there were, between the province and the K’ómoks First Nation, a consent-based decision-making agreement around forestry within the within the

treaty area. Would that agreement, then, come forward as legislation in the Legislature?

What does that agreement look like when it’s in place? Is that just a cabinet decision that’s signed off on?

Again, there are some interesting things on the list here: energy and mines, forestry,

lands, wildlife, water, submerged lands. These are pretty important things. Is this

something that actually comes to the House to be debated? Or is this just signed off

between the provincial government and the First Nation and then brought forward?

Hon. Spencer Chandra Herbert : Agreements or frameworks that are agreed upon through the co-management

chapter would

require, explicitly, legislation. So if they were going to be changing a statutory

decision–maker to a different model, it would come back to this House for a decision.

Scott McInnis : I’m going to come back to that in a second. Just back to the minister’s answer a

few moments ago. He did clarify the standard for binding arbitration. I appreciate

the minister doing that, explaining how if one party brings a co-management idea,

for lack of a better term, to the table, one party is expected to at least look at

it in good faith but may not accept it.

I’m wondering if the minister could walk me through, a little bit, what the standard

is for good faith in that initial piece, which would put the potential agreement aside

or move it to binding arbitration. You know, if you have two parties, and I come to

you and say, “Here’s the idea I want to do,” you say: “Thanks, I’ll take it under

advisement.” You come back to me in two weeks and say: “No, I’m not interested.”

I’m just curious what the criteria are for acting in good faith before it goes to

binding arbitration. I think that’s really important that we understand that.

[5:40 p.m.]

Hon. Spencer Chandra Herbert : Paragraph 7, I’ve got:

“Good-faith obligations under paragraphs 3 and 8 require the parties to, among other

things: (

a) enter into the development of the framework or negotiations, as applicable, with a goal of reaching a mutually acceptable outcome;

(

b) provide timely disclosure of sufficient information and documents to enable a

full examination of the subject matter; (

c) respond appropriately and in a timely

manner to bargaining positions; (

d) not unreasonably reject a bargaining position

of the other party; and (

e) act consistently with the standard of good faith as articulated

in the common law.”

So “good faith,” in this context, is really intended to track the common-law definition

of the term. We’re not creating new terms or new legal understandings here. It really is…. The hope is that parties are…. Well, parties are obligated to enter — it’s not just a hope — into discussions with the goal of achieving a mutually beneficial outcome. That’s

really the continued use of good faith in this proposed law.

Scott McInnis : Appreciate the minister clarifying that, especially for the issue — which he did address

— about just entering into agreement and what that good-faith obligation looked like.

Within the co-management

chapter of the treaty, we’re looking at co-management bodies. I do have a few questions

about those bodies. I’m just going to start off. What is the precise legal status

of these co-management boards, advisory bodies or planning authorities created under

this chapter?

Hon. Spencer Chandra Herbert : The short answer would be that it depends on what you’re trying to do.

If it’s an advisory body that does not have any legal teeth, in the sense of they’re

there to give you advice, and then you’re going to make your decision based on advice

and other decisions….

Okay. Now, if it’s a legal decision-maker…. You know, if you’re replacing a statutory

decision–maker with a different body, that would require legislation, as mentioned.

I think, at that time, whoever the minister was that was moving that would be able

to provide better information around the legal status of the way that operation was

set up.

But as this is just very much enabling legislation, it doesn’t tell us what the future

looks like in terms of the legal status of those arrangements, since they don’t exist

yet.

Scott McInnis : That, I think, answered one of my next questions. Just curious about the creation

of these boards or advisory bodies. Who appoints them, and how are they actually established?

Hon. Spencer Chandra Herbert : It would be, certainly, between the province and the nation, in terms of deciding how those bodies would be set up through a legal agreement.

Of course, that’s in the future, but it would be very much a joint decision.

If you were going to enter into a shared decision-making arrangement, depending on

how that decision was come to and how extensive that shared decision-making arrangement

looked like, it would differ based on what sort of approach you were taking.

Scott McInnis : I’m just thinking for a second about that answer. Let’s say…. I’m just wondering.

The minister may not have an answer for this.

[5:45 p.m.]

If there was an appointment made, let’s say at the K’ómoks level, with members of

elected and hereditary government, and there was a dispute over that appointment,

how would that be resolved?

Hon. Spencer Chandra Herbert : I think we are a little ahead of ourselves in that no agreements have been made, but

in that sense, this is very much enabling. Commonly, these agreements will have a

dispute resolution clause built into them.

Now, of course, if there’s an internal dispute to one party or another, they have

to work that through internally through their processes. Certainly, the understanding

would be that any agreement made to create such a framework would require a dispute

resolution process in order to continue good government.

Scott McInnis : Subject to these bodies and boards, committees being created…. Are they subject at all to any sort of judicial review?

Hon. Spencer Chandra Herbert : As is our legal tradition here, of course, decisions made by a statutory decision–maker

— whether or not it be the existing statutory decision–maker, or if a shared-use decision

legislation was passed and so on —are judicially reviewable, so there is the ability

to question a decision.

I can’t speak theoretically about agreements and decisions that a future government

might make in using this chapter, but the standard has been that they are legally

reviewable and that they have to fit within the format of our understanding of the

law in this province, of common law, with transparency, good faith and all those other

aspects that we discussed.

Scott McInnis : Is there anything within

chapter 13, within the co-management provisions here, which

would alter or anyhow in any way, shape or form constrain the province’s traditional

authority over Crown land management?

Hon. Spencer Chandra Herbert : The clear one in

chapter 13, in terms of modifying decision-making, in terms of shared

decision-making, I referred to earlier. It is the K’ómoks estuary agreement. That’s in terms of shifting how we do decision-making around the estuary.

But in terms of the rest of

chapter 13, we’ve covered off the discussion around what

could be, in terms of potentially entering into agreements down the road. But again,

those would require coming back to the Legislature for fuller legal changes if the

statutory decision–maker was being changed, if there was that constraint or a different

approach to getting to decision. That would require coming back here.

So in terms of this treaty and this legislation we’re bringing forward today, very

explicitly, it’s the K’ómoks Estuary that I think the member’s question would most directly relate to.

[5:50 p.m.]

Scott McInnis : Just on the…. I know we’ll get to the estuary, but I’ve been wanting to ask this question

since we started. Why was the estuary agreement separate from the actual treaty itself?

Hon. Spencer Chandra Herbert : Obviously, the K’ómoks Estuary is incredibly valued by the K’ómoks Nation, and I think

both as a cultural, spiritual, economic…. It ticks all the triple-word scores, and

so on, in terms of protection and in terms of revitalization — the work they’re doing

there around the salmon, archaeological, etc.

It was important to K’ómoks Nation — it’s my understanding — to have the agreement

recognized in the treaty. But in terms of the processes and the work, in terms of

how that is to be set out and how that’s to work…. It wasn’t felt that all that detail

needed to be in the treaty itself, and that’s where the side agreement came to. It’s

acknowledged in the treaty, but the work of putting the side agreement together, I

guess, happened in parallel because it’s much more detailed in terms of just that

finite area of land and water and underwater.

I think that’s probably the best way to say it, and I guess that’s why the co-management

chapter is there. Potentially, we can look at it in other areas but in a different

way. Very much, we were ready to go on the estuary piece, and that was the highest

priority for K’ómoks.

Scott McInnis : Gosh, I don’t want to get too ahead of myself, but I’m just kind of curious. Looking

at the similarities or differences between the estuary agreement and what a potential

co-management agreement could look like, would it be fair to assume that the estuary

agreement that was signed is in some way like a front-loaded or timely delivered co-management

agreement? Would they look the same? Would the estuary agreement look the same as

a co-management agreement that could come later, or is it an entirely different model

altogether?

Hon. Spencer Chandra Herbert : To be very precise, the agreement around shared decision-making around the K’ómoks Estuary is the agreement we have. It’s the agreement that we understand. It’s the agreement

we’ve worked on together to come to agreement on. Obviously, it’s an agreement.

[5:55 p.m.]

But in terms of future agreements, I don’t want to presuppose what a future minister

or a future government might decide to do in terms of how that process would work.

As I mentioned, shared decision-making can take many forms, from very much the deep

end to very much more of a kind of informed, just-a-consultation more of an approach. There’s a range there. But I don’t have any other co-management

agreements that we’re in development with K’ómoks to say, because our focus has been

on the treaty and the K’ómoks estuary agreement as they marry together.

All that to be said, it depends on what a future government might want to arrange,

and of course, that would have to come through the House if it had any sort of effect

on the statutory decision–maker.

I wanted to take more questions, but I move that the committee rise and report progress

and ask leave to sit again.

Motion approved.

The Chair : This committee is adjourned.

The committee rose at 5:56 p.m.