Proceedings in the

Birch Room

The House in Committee,

Section C.

The committee met at 11:25 a.m.

[Sunita Dhir in the chair.]

Committee of the Whole

Bill 20 — K’ómoks Treaty Act

(continued)

The Chair : Good morning, Members. I call Committee of the Whole on Bill 20, K’ómoks Treaty Act, to order. We are on clause 3.

On clause 3 (continued) .

John Rustad : At the end of the day, after session, I asked a quick question of the staff. I’d just

like to get it on record, in terms of page 36 of the treaty. There seems to have been

a bit of a clerical error. I’m just wondering if the minister could confirm that and,

perhaps, walk through the procedure in terms of how that gets corrected.

Hon. Spencer Chandra Herbert : I was hoping the member would come with high dudgeon and be upset about sub 8(1) and how it did not exist, so I could tell him that it is, in fact,

sub 8(l). So it is not an error. The letter L instead of the number 1 is what it refers

to, and the member will see that it does link to (l), not (1).

Scott McInnis : I’m glad we got that squared away.

We left off yesterday…. We had quite a Q and A around the co-management structure,

chapter 13 of the treaty itself. I want to take some time here to revert back to that

specific

section of the treaty, just so we have a very clear understanding of what

these structures look like, what we’re talking about with the creation of co-management

bodies and how they interact with the Legislature. Just dig into it a little bit more.

I think it’s quite important.

We did establish, through a series of questions, the role of binding arbitration within

the structure of co-management. I was really interested in that because binding arbitration

is generally a final step when parties can’t reach a solution in good faith with one

another. I think, generally, binding arbitration has a bit of a negative connotation

to it at times. So it was really important to be able to figure out where the arbitrator

would become involved in the process, either from the beginning or moving through

establishing some of these co-management structures.

I’m interested in a couple of additional pieces around that before we move into some

other sections around the co-management piece. With the co-management structures or

agreements that are put into place, I just want to break that down a little bit, just

so that we have a really good understanding of what the future benefits or restraints

are on those when it comes to the Legislature.

I just wanted to clarify again with the minister. Any co-management structure that

is created — and I appreciate the minister revisiting this with us quickly — whether

it’s a consent-based decision-making agreement or what have you, joint decision-making

agreement…. Will that specific agreement become a piece of individual legislation

that is then embedded within the treaty, or is it essentially another branch of the

treaty, a side agreement, like we have seen?

[11:30 a.m.]

I’m just hoping we can start that off with just another clarification around those

co-management agreements and how they sit within the treaty structure itself, please.

Hon. Spencer Chandra Herbert : The treaty speaks to the process to potentially develop shared decision-making, sharing

governance, but it doesn’t speak to anything beyond that. That would be a separate

piece of legislation that would have to come through the House if there were a change

in the statutory decision–maker. That would not be housed in the treaty. That would be a separate piece of legislation

or a separate agreement with the nation and the province.

Scott McInnis : Just so I’m crystal clear…. I’m not trying to drag this out. I just want a really

good understanding of what a co-management agreement would look like. For example,

if there were a joint decision-making arrangement created in regards to a forestry

operation, perhaps that would be a separate piece of legislation that would not sit

within the treaty itself.

Hon. Spencer Chandra Herbert : Yes, it would be a side agreement, but that would be supported through legislation,

which would be a separate piece of legislation, as I’ve said a few times now.

Scott McInnis : A separate piece of legislation. Okay. I may come back to that with one other question.

I’m just going to kind of let that sink in for a minute.

With future side agreements that are separate legislation, are there any additional

constitutional obligations, beyond ordinary legislation, with these co-management

agreements?

Hon. Spencer Chandra Herbert : Well, side agreements would not be constitutionally protected like the treaty is.

Other constitutional obligations…. Of course, we would still have a duty to consult

overlapping nations or any nation that might be impacted by such an agreement. Beyond

that, I don’t I don’t see any other constitutional obligations.

Scott McInnis : I appreciate that answer from the minister and the staff.

Just looking at…. I know my friend from Courtenay-Comox touched on some of the potential challenges that he had raised with a constituent

around forestry tenure holders, and I do have a few additional questions I wanted

to ask about that, just so it’s clear.

Any of the co-management side agreements that are created — how would those affect

existing forestry tenure holders, any harvesting approvals, timber supply reviews,

forest development plans, anything like that?

[11:35 a.m.]

Hon. Spencer Chandra Herbert : I’ll try to take a stab at it. It’s a bit theoretical, because they are future agreements

that could be made. They’re agreements that a future government or any government,

I guess, could enter into, should this treaty pass. What we’re talking about is at

least two to three years away before this would even become live.

But all current policy would still apply. Current considerations around consultations

and how the Forest Act and other acts impact forest tenure holders would still apply.

So it’s kind of hard to be too definitive because it really depends on what sort of

an arrangement were made, what area it impacted, who it impacted, the type of land.

All those kinds of things come into effect.

So I can’t go into definitive answers on a theoretical project a couple of years from

now, but it would be fair to say that the current processes and requirements would

still be required.

Scott McInnis : Beyond the existing provincial processes, will forestry companies require any additional

approvals, either from government or from the K’ómoks First Nation for any of these co-management structures that we’re talking about?

Hon. Spencer Chandra Herbert : Again, it depends on what kind of agreement were made. I would say probably the best

time to be getting fuller details on questions around these agreements would be if

an agreement were brought forward to the House for further understanding. Again, it’s

difficult to provide a definitive answer to a hypothetical question about something

that might happen in the future, which would require further legislation and likely

further policy work as well.

Again, I’ll reference that if the statutory decision–maker were changed and how that

process worked, that would require a legislative change, and that probably would be

the most appropriate time to get further information on how that process would work,

because right now we’re just dealing in hypotheticals.

Scott McInnis : I understand it’s…. We’re talking about potential future agreements to be struck.

I just think it’s important to also understand if any of these had been potentially

modelled out by the ministry or the treaty team and discussed with anybody that currently

holds a tenure, just to give them a bit of a heads-up.

But I suppose it’s also fair that because these will be individual pieces of legislation

that will come forward, it will give us an opportunity to debate exactly what they

are at the time that they come forward and perhaps address the specific issues at

that time.

There’s obviously a discussion, a debate around old-growth management and how that

looks. So this could be another hypothetical, but when we’re talking about forestry

co-management arrangements, are there any special provisions which aren’t listed here

to address disagreements over old-growth management in these agreements?

[11:40 a.m.]

Hon. Spencer Chandra Herbert : The only shared use decision-making agreement referenced that’s real at this time

is the estuary management agreement, and as far as I know, there’s no old growth in

and around the estuary that is directly impacted by that agreement.

Now, I could be corrected, but I didn’t see any when I was out there checking out

the estuary. There may well be some that are small that I don’t know about, but in

terms of the broader old-growth issue the member references, it’s not here in this

treaty.

Scott McInnis : I understand that. I think, again, old growth kind of sits in a bit of a specific

category of its own, and I know it is a little bit controversial over the management

of old growth in British Columbia and how we’re dealing with that, and there are arguments

on all sides of the spectrum on that.

I just wondered if there had been any consideration potentially into that specific

area when thinking about these co-management agreements and potentially who would

have final say over the management of the old growth — whether it falls under the jurisdiction of the province or if that’s transferred over

to the nation itself.

But again, I do understand that it probably depends on which lane of co-management

agreement both parties would decide to enter into. Just highlighting that, again, old-growth management decisions are kind of held in a bit of a separate pocket, if you will.

When we’re talking about…. Whether it’s any of the potentials under this — forestry;

energy and mines; environmental management; lands, parks and protected areas; wildlife;

fish; water; submerged lands and foreshore areas or ocean protection management….

What certainty under any of those — let’s call them — economic development opportunities, industrial opportunities, resource management opportunities, conservation opportunities, could the government provide to investors regarding timelines and approval processes

under the co-management model here?

Hon. Spencer Chandra Herbert : Of course, government, across the whole of government, is looking at ways to speed

up economic opportunity, to give more opportunity for people through permitting timeline

reductions, more certainty around how decisions are made and, in fact, co-management

in a number of cases we’ve seen across the province that are not related to this treaty.

We have seen faster decision-making when it comes to mining, when it comes to forestry

and a number of other opportunities through more consultation and more collaboration

at the front end.

Certainly, I’ve heard from a number of large mining executives, for example, who said

that by getting in early for discussions with local nations, understanding their interests,

understanding the community interests — whether it be a city or a town nearby — they

get better decision-making, and then that leads to faster timelines as well.

There’s nothing in the legislation that speaks to permitting timelines, but certainly, that is a key objective.

[11:45 a.m.]

I know, certainly, in my conversations with K’ómoks Nation, one of the things they’re excited about

is how they believe that through treaty they will be able to make quicker decisions in the valley that will

lead to more economic benefit, whether it be housing, job opportunities, etc., where

they don’t have to wait for the federal government to give them the sign-off or get

approvals, which can stretch the processes quite long.

I don’t know if that completely answers the member’s question, but there isn’t specific

language which says that this permit must come through at this time. Of course, the

co-governance chapter, as the member knows, is about the prospect of potentially creating

agreements, but there are no agreements beyond the estuary agreement that I’ve referenced.

One more thing just handed to me as well. I want to clarify one thing. I stated, the

other day, that the treaty provides K’ómoks with approximately 33.42 square kilometres. I should’ve said 34.42. I think I was

speaking fast and jumbled my numbers, so apologies there.

Then the other one is that it talked about 10.4 kilometres of K’ómoks private lands. It is actually 1.04 kilometres of K’ómoks private lands. Apologies. That is quite a difference between ten and one. Clearly,

either I missed the decimal point or jumped forward there. So apologies to the member.

I wanted to make sure that was clear for the record.

I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The Chair : This committee stands adjourned.

The committee rose at 11:46 a.m.