2007 Legislative Session: Third Session, 38th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, NOVEMBER 1, 2007

Morning Sitting

Volume 23, Number 11

CONTENTS

Routine Proceedings

Page

Committee of the Whole House

Tsawwassen First Nation Final Agreement

Act (Bill 40) (continued)

M. Sather

Hon. M. de

Jong

D. MacKay

B. Lekstrom

G. Gentner

S. Fraser

S. Simpson

[ Page 8995 ]

THURSDAY, NOVEMBER 1, 2007

The House met at 10:03 a.m.

[Mr. Speaker in the chair.]

Prayers.

R. Cantelon: Mr. Speaker, I'd like to note in the House

that one of our longest-sitting members is having a birthday today — I would

hasten to add that I did not say "most venerable members" of the Legislature;

however, if the shoe fits, wear it — the member for North Vancouver–Seymour.

Orders of the Day

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

Bill 40.

Committee of the Whole House

TSAWWASSEN FIRST NATION

FINAL AGREEMENT ACT

(continued)

The House in Committee of the Whole (Section

B) on Bill 40; K.

Whittred in the chair.

The committee met at 10:05 a.m.

The Chair: Good morning, Members. I call the committee to

order on Bill 40,

section 3,

chapter 10.

section 3 (continued) .

M. Sather: When we left off last night, we were talking

about the Tsawwassen wildlife harvest agreement. I had asked the minister, with

regard to the Upper Pitt and the Pitt, where that's part of the Katzie First

Nation traditional territory, if there had been consultation with the Katzie.

Madam Chair, oftentimes when a minister has bad news or not

agreeable news, it's part of the political game that you don't really get an

answer as such. The minister did say some things, and he's an astute politician,

so what he said in effect was that there was no consultation.

I would like to ask the minister why. Why was there no

consultation? What is the thinking of the negotiators? Was it that if they

involve consultations with the Katzie First Nation and other first nations that

it would take too long, that it would drag the process out and that they could

never come to an agreement?

Was there concern that that would involve additional costs that

would balloon the costs of treaty negotiations to such a level that they would

be impossible or unsustainable? Or were the negotiators concerned, was the

government concerned that if they'd had those consultations, they simply

wouldn't have got agreement from those other first nations and, therefore, the

treaty wouldn't have happened? I'm curious to know why those consultations did

not take place.

Hon. M. de Jong: I am deeply aggrieved that the member

interpreted my adherence to the rules of this House, which required us to

adjourn last night, as somehow signalling a desire to avoid answering his

question. We have engaged in three weeks, now, of detailed discussion and

debate, and I am happy to continue doing so. I regret and somewhat resent any

insinuation that I have tried to avoid.

I have tried to answer questions as best I can, undoubtedly

imperfectly, but I have tried to be as forthcoming as I can about the

information and the provisions contained within the agreement. I also disagree

with the manner in which the member has characterized my answer, although it was

a rushed answer yesterday because we were at the conclusion of business.

I can advise the member that I am advised that there were

relatively extensive discussions between the Tsawwassen First Nation and the

Katzie First Nation, such that it is my understanding that on the broad issues

involving overlapping claims that agreements, understandings, were arrived at.

The fact that that took place in discussions directly between the two first

nations is, I think, a positive thing as opposed to a negative thing.

There will undoubtedly be ongoing discussions. Within the park,

for example, the parks branch will play a central role in coordinating the

ongoing discussions. We are creating new relationships here not just between the

Columbia but also with other first nations. Happily, in this case, that

relationship has already taken root, and discussions occurred between the two

first nations. I, for one, see that as a very positive feature of the lead-up to

this agreement, and it bodes well for its future prospects.

[1010]

M. Sather: I'm trying to ascertain, then…. Is the minister

saying that what took place with regard to consultation with the Katzie First

Nation was completely different than what occurred with other first nations in

overlapping situations?

If that's the case, then I'd be pleased to know that. As has been

outlined before, that clearly is not the opinion of the Semiahmoo, for example,

who have launched a court challenge and who have said that there were no

meaningful consultations with them. It's the same with the Sencoten Alliance.

There's also a challenge by the Cowichan. They're saying quite clearly and

unequivocally that there was no meaningful consultation with them.

Is the minister, then, saying that notwithstanding what those

other first nations are saying, the consultation with the Katzie First Nation

was of a different order entirely — that it was categorically different than

what occurred or, in fact, did not occur with those other first nations who have

overlapping territories and concerns?

Hon. M. de Jong: I don't think there's any doubt that the

nature of the discussions and the points of interest will vary, depending on who

is involved. I think ensuring that there is a level of engagement that

[ Page 8996 ]

is respectful of that fact and is flexible enough to accommodate that reality

is very important.

The member has referred to some disagreements — some that have

matured into litigation. I want to refer to one of them because I have some good

news for the member, and his comments provide me with an opportunity to advise

the committee, the House, of this fact.

There was initially litigation commenced by the Cowichan First

Nation with respect to this treaty. I'm happy to advise the member and the

committee that as of yesterday the parties have re-engaged in discussions and

have agreed between themselves to set that litigation aside. I think that's

tremendous news.

M. Sather: Thanks to the minister. The minister is saying

that there are different agreements and different kinds of consultations that

have happened, and that's of interest. But also, we're just beginning the treaty

process. This is the first modern-day urban treaty, and there are going to be

other treaties.

I think it's really in the public interest to know what the

government's view is around court challenges that have been launched. Normally

if Joe is selling a house to Tom, and John says, "But wait, I have a legal

interest in that sale," and it's proven that he does, then there has to be

compensation.

Is the government anticipating, then, that as a result of these

challenges there could be additional compensation that taxpayers are going to

have to pay out? Or is the government thinking that if there are any court

settlements that are adverse to the treaty process, the government will then

pass laws that essentially make those rulings null and void?

This is an important question, because we're just beginning this

process. What do the people of British Columbia have to look forward to as the

government's response to these challenges?

I understand that the minister is saying that the Cowichan have

abandoned theirs, and I know that the Katzie have not launched a challenge. But

what is the government's response going to be to these ongoing challenges,

particularly should some of them be successful?

Hon. M. de Jong: I want to indulge the member to the

greatest extent possible. I do, however, want to say that we have had this

discussion twice now during these committee hearings, in the parts of the

agreement that refer specifically to overlapping claims.

[1015]

I will oblige the member by summarizing my earlier comments. But

this is a weighty, complex, comprehensive document, and if we are going to get

through it in anything approaching a timely way, we are going to have to become

a little more disciplined about recognizing when we have dealt with an issue in

the appropriate spot in the agreement.

Let me say for the final time that the government takes seriously

the obligations that exist around consultation. The agreement is structured in a

way — and we have gone through those sections of the agreement — that ensures

that nothing in this final agreement can adversely impact on the rights of

others. It's called a non-derogation clause. The rights we are dealing with in

this

chapter are not exclusive.

If the member wishes, he can consult my more expansive comments in

the earlier chapters of the agreement, but there are important provisions that I

know this member and other members of this House want to explore in this

agreement. If we keep going back over old ground, we're not going to get there.

M. Sather: I will move on to another issue, but I must say

before that that the reason…. I've listened to most of the debate and heard most

of what the minister has said — nearly all of it. I'm finding over and over that

it's very unclear. His answers are not specific, and I think the people of

British Columbia want to know what this treaty is going to look like on the

ground in real terms.

I won't ask it again, but I know that the minister didn't answer

the question of how they will deal with legal challenges. I think the people of

British Columbia really have a right to know. He says, "Oh, we discussed it

before," but he has never answered the question.

I want to move on, though, to the other thing that the minister

said, and he repeated it again today. This was with regard to the wildlife

harvest area. When I questioned him about it, he said that the rights that are

exclusive to the Tsawwassen cannot be exercised in a way that detracts from

aboriginal rights of other peoples and first nations. He repeated it again

today. I've heard this over and over again in this chamber, but I fail to

understand in real terms how that works.

Let's look, for example, at the harvest agreement. I mentioned

yesterday that there's a band of elk being introduced to the Upper Pitt, and the

member for Bulkley Valley–Stikine tells me that elk are very tasty eating. I've

eaten a lot of moose and deer, but not elk. So let's say, for example, that the

Tsawwassen send a hunting party up there to hunt elk. Let's say, for the sake of

argument, that the band of elk is 75 in number. Let's say that the Tsawwassen

take 20.

Can the minister explain to me how that does not affect the rights

of the Katzie First Nation to harvest wildlife in that area?

Hon. M. de Jong: I think the specific answer to that

question relates to the provision set out in

section 34.

M. Sather:

Section 34. I can go back and read that, I

guess. But again, the minister doesn't want to talk about real, on-the-ground

questions.

Hon. M. de Jong: I just did.

M. Sather: No, you didn't. You said to refer to

section 34.

I asked the minister a specific question of how it could be that

the hunting and harvest rights in this particular issue would not be negatively

affected.

[ Page 8997 ]

There's no way that they can't be negatively affected. I fail to understand….

I guess it's legalese and you have to put it in there, saying that

the rights of other first nations won't suffer. But in fact, they will. They

will suffer. I think that's something we have to recognize, moving on here.

Of course, we went over that with the fisheries agreements, and

the member for Yale-Lillooet and the member for Delta North questioned the

minister about the fisheries agreements and how that might affect other nations.

[1020]

The member for Delta North wanted to talk about numbers, which

would bring us to an on-the-ground example. The minister didn't want to talk

numbers. He doesn't want to be specific. It's giving the people of British

Columbia undue cause for concern. I think we all want to have reasonable and

honourable settlements with first nations, but they need to be done upfront and

straightforwardly.

Moving on to

section 2 of

chapter 10.

Hon. M. de Jong: I take it that was all about

section 1.

M. Sather: That was the

preamble.

All right.

Section 2 says that the Tsawwassen right to harvest

wildlife is "limited by measures necessary for conservation…." I'm going to ask

about another on-the-ground example here.

I understand that conservation is coming first. That's important.

But for example, if we look at deer-hunting, normally — frequently, at least —

there's a male-only season for deer. If, in those harvest areas, it's the case

for non-aboriginal people that there's a male-only season for deer, will the

season for the Tsawwassen First Nation be male-only, or will it be for either

sex? Will the Tsawwassen First Nation be able to hunt both bucks and does, or

just bucks?

Hon. M. de Jong: In terms of a designated species for which

there is a wildlife harvest plan, I think the specific answer to the question is

that I can't answer that today but that there is a mechanism provided for in the

agreement which assists the member and me in knowing what that process would be.

That is set out at

section 43, which lists the criteria that would go into a

consideration of whether it's bucks, does or both. That's the best answer I can

give today to the question.

M. Sather: In one sense, I suppose, that's fair enough.

Still, it does leave the public wondering how this is going to shake down. What

kind of agreements…?

That's an issue for hunters. It's very germane. They want to know

whether the basic hunting rules are going to be changed for first nations as

opposed to them. They will have a lot of interest in seeing how that goes down

the road.

section 5 it talks about how the Tsawwassen First Nation "may

sell Wildlife or Wildlife parts, including meat and furs…." The minister will

know that there's a lot of concern about the trade in gallbladders of bears, for

example. Does the trade in meat include internal organs as well?

[1025]

Hon. M. de Jong: I'm advised and can advise the member that

the

section is designed to operate in the following manner. It allows certain

activity only if federal and provincial laws allow that activity. For the

example the member has given, my information is that there is a strict

prohibition provincially against the sale. As long as that remains in effect,

the Tsawwassen are captured by it.

The

section exists because if there are changes in some of those

prohibitions…. I can't actually imagine a change in the prohibition on the item

the member has mentioned. But if there are changes in some of the other

prohibitions, the Tsawwassen First Nation did not want to be, nor did we want to

put them, in a position where they were precluded like other British Columbians

from taking advantage of those changes.

M. Sather: Thanks to the minister.

section 7. The right to harvest will be exercised in a manner

that does not interfere with uses of provincial parks. I'm not sure if this is

the place that this question is most germane to. I couldn't find another area to

ask it under, so I'll ask it here.

If we again look at hunting — which is not allowed in Golden Ears

Park, so it's not an authorized use — will the Tsawwassen First Nation be

permitted to hunt in Golden Ears Park?

Hon. M. de Jong: The Tsawwassen First Nation can now and,

future.

M. Sather: I don't know if they are now. If they are, I'm

not aware of it, but it may be the case. Maybe I'll ask the minister some more

questions about that when we get to the

section on parks.

section 9. It is disturbing, this talk about the loss of

hunting opportunities. I hope that never happens in the wildlife harvest area in

the Upper Pitt. But if that happens, the way I'm reading it, it says that the

value of the loss is approximately $50,000. I think the minister said yesterday

that that was $50,000 a year in total.

Hon. M. de Jong: No, one time.

M. Sather: One time.

My question, though, is: is that a mere $50,000 for the whole

band, or is that per member? That seems like an awfully small figure for the

loss of your ability to hunt and harvest.

Hon. M. de Jong: One time, for the band.

M. Sather: Let's hope they keep having hunting

opportunities, then, because that wouldn't be much compensation. That's

section

Section 45. No, I'll pass on that one.

[ Page 8998 ]

Section 53. "Tsawwassen Laws made under this

chapter may be

enforced by persons authorized to enforce Federal Law, Provincial Law or

Tsawwassen Law…." The minister talked yesterday to the member for

Vancouver-Hastings about this.

It was said that this shouldn't be expected — that the Tsawwassen

would have the resources to fully implement and devise a wildlife plan, and so

on. I'm wondering what role they will have in enforcement. For example, would

there be Tsawwassen First Nation conservation officers? Would that be

envisioned?

[1030]

Hon. M. de Jong: Pursuant to this provision, what this

allows for and what our expectation is, is that the Tsawwassen First Nation

government will come to an understanding with the other levels of government,

the other signatories, on a mechanism for enforcement. However, the

section does

not preclude the possibility that the Tsawwassen may wish to hire an enforcement

person.

The jurisdiction that that person or persons would have would be

different, depending on whether they are on Tsawwassen lands or somewhere else

in the broader wildlife harvest area. The applicable legal regime they would be

operating under or the jurisdiction they would have would depend on whether they

are in an area of Tsawwassen lands or in the broader wildlife area.

I hope that covers the gamut of possibilities.

M. Sather: With all the necessity to come up with wildlife

harvest plans and the regional wildlife planning and all that, this is going to

require a lot of work by Ministry of Environment staff. With the cutbacks to MOE

staff now, it's very difficult to get a conservation officer to come out — I

know in my community — to investigate infractions. It's even difficult to get

them to come out to public meetings that they've committed to.

How is the ministry going to be able to manage with these

additional responsibilities with the resources they have now, and in fact, the

job that they're trying to do now? Is it not going to suffer as a result of

these additional responsibilities?

Hon. M. de Jong: He might have heard me acknowledge in my

comments yesterday that this is a big job. As I think one of his

colleagues — sorry, former colleagues, for the moment, so I'm to understand —

indicated, this is but one part of a large job. The member is right. It's going to impose

some obligations on the Tsawwassen, some work on the Tsawwassen, some work on

us. We are committed to ensuring, through the initial implementation stage and

thereafter, that there are sufficient resources.

[1035]

Government and officials have learned a great deal from the

experience in the Nass Valley with the Nisga'a, so we have the benefit of that.

I think it's fair to say that one of the lessons that was learned through that

initial period is that it is a big job. Undoubtedly, following what I hope will

be the passage of this bill into law and the signing of the formal instrument

and the passage of federal legislation, there will be a period of time — I think

something in the neighbourhood of a year in advance of the effective date — when

there will be a lot of work that needs to be done. The government is committed

to ensuring that the resources are there to effectively work with our partners,

the Tsawwassen and Canada, to ensure that that work is done.

M. Sather: Thanks to the minister for that.

My final question then: is the minister saying that the government

is committed to providing the additional resources? This planning, I assume, is

happening now. So is the government committing to hire more ministry staff to

complete this process — the Ministry of Environment?

Hon. M. de Jong: In fact, the member may recall from the

discussion we had in estimates this spring, additional individuals have been

hired.

I'm not in an authoritative enough position to offer specific

information about the Ministry of Environment, but I can tell the member that

the government is committed to the implementation of the agreement, has

identified additional resources and is confident of moving forward but also, as

the member has cautioned, aware of the fact that it's going to be a big job.

We're talking now about the Tsawwassen treaty, and in a couple of weeks I hope

we're going to be talking about a treaty with five additional first nations,

with the Maa-nulth. The stresses and the challenges that that poses are going to

be very real, but it's, for me at least, a happy challenge and one that I know

the government welcomes.

D. MacKay: I'd like to start with

section 4 under

chapter

10 dealing with the right to trade and barter in wildlife or wildlife parts. It

does say that the Tsawwassen members have the right. So that begs the question,

given the fact that the aboriginal rights that are protected under

section 25

and

section 35…. I take it, then, that the right to harvest or trade and barter

in wildlife parts is not an aboriginal right that is currently protected under

section 35. Is that a correct assumption on my part?

Hon. M. de Jong: I think I indicated earlier to the member

that I wasn't going to place myself in a position where I am offering or

attempting to offer authoritative

interpretations of constitutional law. I am in

a position to answer for what is in this agreement and what the impacts and

anticipated impacts are of the provisions that have been negotiated in this

agreement.

D. MacKay: Well, the reason I asked the question was that

section 8 under

chapter 2, it says: "This Agreement does not alter the

Constitution of Canada, including: a. the distribution of powers between Canada

and British Columbia; b. the identity of Tsawwassen people as aboriginal people

of Canada within the meaning of the Constitution Act, 1982 ; or c.

sections 25 and 35 of the Constitution Act, 1982 ."

The fact that the right to trade and barter is now included in

this treaty — I have to assume it was not an

[ Page 8999 ]

aboriginal right that was protected under

section 35. So we are, in fact, in

this

chapter extending another right to a group of people that is not afforded

other people.

[1040]

I guess I will go with the original response that I got from the

minister, but that's the way I read it. We are extending another aboriginal

right, to aboriginal people only, to trade and barter in wildlife or wildlife

parts.

That carries me next to the powers to make laws, in

section 20 in

chapter 10, where the "Tsawwassen Government may make laws in respect of…the

distribution…of Wildlife harvested under the Tsawwassen Right to Harvest

Wildlife; the Trade and Barter of Wildlife harvested by Tsawwassen Members under

the Tsawwassen Right to Harvest Wildlife."

Then it goes on to say, under

section 21, that a Tsawwassen law

made under that

section "prevails to the extent of a Conflict with a Federal or

Provincial Law."

So the Tsawwassen law will supersede any provincial or federal law

as it relates to the trade and barter of wildlife parts. Is that correct?

Hon. M. de Jong: I think the best way to characterize

section 20…. If there were a heading, I would probably put "Internal management

rules." It does vest in the Tsawwassen government the authorities required to

manage internally the harvest of wildlife.

D. MacKay: The bottom line is that it still prevails over

any federal or provincial legislation.

I'm going to carry on. I don't want to take a lot more time, but

there's another

section under the harvest of wildlife that causes me some

concern. That's under

section 45. I'll just read it for the record.

It says: "The Minister may approve a method of harvesting that

differs from those methods permitted under Federal or Provincial Law if the

Minister is satisfied that the method is consistent with public safety."

Now, that brings to question…. I don't think it's an extreme

suggestion. Are we suggesting that we would allow pit-lamping to take place or

perhaps leghold traps to take animals that would normally be shot or hunted with

a bow and arrow? Is this what that

section 45 is referring to or suggesting?

Hon. M. de Jong: I dealt with that specifically — and the

specific example that the member raises — yesterday. Probably the best thing to

do is to refer the member to the Hansard that covers that

section and

that question specifically.

D. MacKay: I apologize for asking the question, but I

thought I was in the House most of the day yesterday, and I don't recall — we're

just on

chapter 10 now — that question being asked before. But if the minister

says it's there, I will have a look at Hansard .

The issue I have with the wildlife

chapter of this Tsawwassen

treaty is the fact that we are creating some more divisions between the

aboriginal community and the non-aboriginal community as it relates to the

taking of wildlife and the sale and barter.

We've actually expanded, in my view, the aboriginal rights to

harvest or to trade and barter in wildlife parts because it's not something that

was previously protected under

section 35 of the constitution.

[1045]

With that, I will close my comments and look in Hansard to

see if I can find the answer to my last question.

Hon. M. de Jong: For the member's benefit, at page 53 of

the Blues is the exchange between the member for Vancouver-Hastings and

me on

section 45, dealing specifically with that issue.

B. Lekstrom: Following along, I know that some colleagues

in the room today have asked some questions. Going back, I heard an answer under

section 5 on the sale of wildlife or wildlife parts, including meat and furs

harvested. I'm unaware of the ability — and I guess I'm still looking for some

clarification — to sell wildlife meat, for instance.

I did hear the minister respond, and I think it cleared it up

somewhat for me, but under the existing laws that the Tsawwassen First Nation

will have the ability to make on their lands, can you tell me if they would at

this point…? Although it would contravene a provincial or federal law to sell

wildlife meat, can they do it within their own lands with their own members at

this point?

Hon. M. de Jong: The authority to which one would look is

the federal Indian Act, which, of course, we are leaving behind by virtue of

this instrument. The best information I have is that sale in the manner

described by the member on the reserve is prohibited presently. That's the best

information I have at the moment.

B. Lekstrom: Back again on that, I believe I heard you say

in an answer previously to another member's question that we put this in here

because if the laws change, either federally or provincially…. I guess that one

somewhat confused me. If we change a law, either federally or provincially, it

would still apply to all Canadians, which Tsawwassen First Nation or British

Columbians would be. That's my understanding.

Is there a reason beyond…? I guess I'm thinking of why this

section even has to be in there. I'm not sure we have to lay it out, and that's

why I'm somewhat curious as to why

section 5 would be there. If we eventually as

a province or as a federal government change our laws existing under this

section, it would apply automatically to the Tsawwassen First Nation anyway. So

why would we put this overlap into a treaty?

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

to ensure that the argument is not raised that, notwithstanding the change in

the law of general application, somehow by operation of the provisions of this

agreement the Tsawwassen First Nation is excluded from the very application the

member has described.

[ Page 9000 ]

I think the particular concern would be on Tsawwassen settlement

lands, Tsawwassen lands, as opposed to the broader wildlife harvest area. But

the Tsawwassen would want to make it clear that the benefit of that change could

also accrue on the smaller Tsawwassen lands, over which they have the bulk of

the jurisdiction and authority.

B. Lekstrom: I'll move now to

section 16 under the

chapter

we're discussing. Again, a clarification from the minister as to why this would

be possibly included in this treaty and, I believe, probably a template for

other treaties.

[1050]

It reads: "Neither Canada nor British Columbia will require a

Tsawwassen Member to have a licence or to pay a fee or royalty for harvesting

Wildlife under the Tsawwassen Right to Harvest…."

I understand that. I understand what we're doing there, but under

section 35, unless I've missed something, they have that right now across the

country. Is that not correct?

Hon. M. de Jong: As I did with the member for Bulkley

Valley–Stikine, I'm not going to offer the benefit of my

interpretation of the

state of constitutional law across the country. I will say this to the member,

however. The purpose of the agreement in the grandest sense is to define with

precision what those rights are and to define it substantively and

geographically as well. I think that's the significance of the provision.

The member might say: "Well, it's based on his understanding or

someone else's understanding of the state of constitutional law. It's

unnecessary." But the point of the exercise is to ensure that there is a place,

a document that people can look to, which exhaustively, conclusively and — one

hopes — understandably defines what the laws are, what the jurisdictions are and

where they apply geographically.

B. Lekstrom: Again, thank you to the minister. I guess the

reason I bring this up — certainly the minister understands where I stand — is

to point out what I consider a huge inequity. I mean, we are not treated equally

under the law in this country. We emphasize it here, and it's amplified.

Yes, I have concerns about that, and that's one of the fundamental

disagreements I have. As I've indicated earlier, I'm not opposed to fair and

equitable treaties — ones that treat people as equal Canadians and equal British

Columbians. I don't think this does that.

I do want to go back to

section 4, and I know you've had questions

on this before: "Tsawwassen Members have the right to Trade and Barter Wildlife

or Wildlife parts, including meat and furs, harvested under the Tsawwassen Right

to Harvest Wildlife, among themselves or with other aboriginal people of Canada

resident in British Columbia."

I can read that. The question to the minister is on the trade

and barter system, which to me is really no different than the sale of an

object. Could the barter system include cash in return for wildlife parts or

meat?

Hon. M. de Jong: I am looking at the defined terms in

chapter

1 and would refer the member to the defined term "Trade and Barter," which is

defined: "does not include sale."

B. Lekstrom: Okay. Well, I do thank the minister. I believe

that's going to conclude the questions I have on

chapter 10, not without the

concerns I've raised. I think it's important, and for everyone watching or for

the members asking questions, I think this is a valuable exercise and that we

can all learn from what's in this document. I thank the minister to this point.

G. Gentner: I have very few questions here. Unless I missed

it, I'm just trying to know how this treaty interacts with municipal firearms

discharge bylaws.

[1055]

Hon. M. de Jong: To the member: the two relevant provisions

that I can point to immediately for determining that issue are sections 2 and 17

within the chapter.

G. Gentner: What oversight, therefore, does the provincial

government have over the restricting of discharge of firearms over

municipalities that oversee the Tsawwassen traditional territory?

Hon. M. de Jong: I think the regime the member is referring

to is addressed fairly clearly in

section 17.

G. Gentner: I have no further questions on wildlife, unless

someone else does. If not, maybe we're going to move on to

chapter 11.

S. Fraser: We are complete on

chapter 10 now, and we are

willing and excited to move on to

chapter 11.

M. Sather:

Chapter 11 is on migratory birds. Looking at

sections 1 and 2, "Tsawwassen First Nation has the right to harvest Migratory

Birds…throughout the year," and

section 2 says that the right to harvest is

limited by measures necessary for conservation. Also, in

section 15, it says:

"The Minister retains authority for managing and conserving Migratory Birds…."

And in 29 and 30 it talks about designating what migratory bird

populations, how the minister and the parties will share information with

respect to conservation, and where the minister is concerned about a

conservation risk, a bird population can be designated.

Currently, waterfowl hunting regulations — that is, waterfowl

being ducks and geese — are limited, certainly for non-aboriginal persons, to

the fall season and sometimes into the winter. I think the minister is probably

going to give me an answer somewhat similar to the last one, which I will wait

for.

[1100]

I'll just put the question, first of all, to the minister. We can

assume, under this agreement, that the Tsawwassen First Nation will have the

right to harvest ducks and geese during their nesting period.

[ Page 9001 ]

Hon. M. de Jong: I think the technical answer is that they

can hunt, subject to conservation measures as determined by the authority. I'm

probably not in the best position to say how that will play out or how one might

expect that to play out. The right to hunt is subject, amongst other things, to

conservation measures, and one can imagine how that might come into play.

M. Sather: As we can see, there's a lot to be determined on

how this is actually going to look on the ground.

The minister, to one of my questions earlier, said that right now

first nations have the right to hunt in Golden Ears Park. Does the minister have

the information…? Is it the case now that first nations have the right to take

waterfowl during the nesting period?

Hon. M. de Jong: The member may know more about this than I

do. I do not know for certain what the authority is at present, and I do not

know, maybe more importantly, what the practice is at present.

M. Sather: What about species, then? I think this becomes

part of the harvest agreements, if I'm not mistaken. I'm a little confused,

because the minister also talks about how current law with regard to wildlife

prevails in these agreements. Then, for example, we have a threatened,

almost-extirpated, population of greater sandhill cranes in Pitt Meadows.

They're also in Burns Bog. Just to clarify, there would be no hunting permitted

of these birds?

Hon. M. de Jong: Hopefully, this will provide the member

with the information and assurance he's looking for. If there is an endangered

species upon which there is, therefore, a blanket ban on the harvesting, that

would apply to the Tsawwassen as well.

M. Sather: When it comes to the greater sandhill crane

population in the lower mainland, there used to be thousands of them, and now

we're down to about 12 birds in Pitt Meadows and maybe 20 in Burns Bog. There

are other greater sandhill cranes in British Columbia, so they're not designated

as an endangered species. But under current wildlife hunting laws, in British

Columbia, anyway…. I stand to be corrected, but I'm pretty sure I'm correct

about this. There's no hunting of cranes allowed in British Columbia. There is

in the eastern United States and so on.

[1105]

That concerns me, then, because they're not an endangered species,

but they're certainly…

An Hon. Member: At risk.

M. Sather: …in danger of being extirpated locally. They're

certainly at risk of that.

Can the minister give me a little more assurance that the hunting

of the sandhill crane in the lower mainland will not be permitted under this

agreement?

Hon. M. de Jong: I think I can, because under the

circumstances the member has described, my expectation is that it would become a

designated species and then subject to all of the relevant provisions and

decision-making authorities that are covered by that so that it doesn't slip

through the cracks, as it were.

M. Sather: Thank you to the minister. That helps to assure

me somewhat.

The

section is on migratory birds; it's not just ducks and geese.

Shorebirds are also migratory birds. I spoke earlier in this House about how

shorebirds are threatened in the area where the treaty's going to be settled —

not so much up my way, as it were, in the Pitt area, but down along the coast.

We don't think of shorebirds, of course. They're little, tiny

birds, so you don't think of them as being shot for food purposes. But I'm just

concerned that they could be subject to harvest, just insofar as some people —

not responsible people, but some folks — will shoot any bird they can. Could it

be the case, then, that shorebirds could be shot under this agreement and it

couldn't really be prevented?

Hon. M. de Jong: I think I need a little bit more

information. I'm not sure if, for example, there's a past practice that the

member is aware of that he can point me to, or something with a little more

specificity. Otherwise, I'm not sure I'm going to be able to offer a very

helpful answer.

M. Sather: I don't know if I'm going to be able to help the

minister much in that regard, either. My only concern was…. I don't know of

people specifically going out and shooting shorebirds. But it certainly is the

case, as I said before, that some people will shoot anything when it comes to

birds, so I just was concerned that you might not be able to prevent it under

this agreement.

I wanted to ask the minister, though, if…. There would have been a

lot of discussions, in this process, with both federal biologists and provincial

biologists regarding wildlife — migratory birds in particular, in this case.

Can the minister let me in on any of his discussions now in terms

of…? Are the biologists satisfied, in general, that wildlife will be protected

at least as well as they are now, if not better? Or were there a lot of concerns

expressed that migratory birds might be at more risk as a result of this

agreement? Can the minister tell me anything about those discussions?

[1110]

Hon. M. de Jong: I think I know what the member is driving

at. I can tell him this. There was intense engagement and discussion. The unique

location of the Tsawwassen First Nation, located where it is…. The member has

already properly highlighted the significance of this area along migratory

routes. All of that was part and parcel of the discussion. There are

international conventions, of course, that are applicable here, which the member

has referred to during this debate, that have engaged the attention.

The agreement's presence here in this chamber as part of this

legislation is confirmation of the fact that,

[ Page 9002 ]

within the provincial government, all of the relevant authorities are

confident that this properly and responsibly addresses the types of issues that

the member is raising and primarily the issue of conservation.

I am advised, and am proceeding on the basis, that a similar level

of confidence exists within the departmental authorities at the federal

government, but I wouldn't presume to tell the member that I have spoken with

all of those various departments federally. We are relying on the assurances

provided by our negotiating partner representatives that that is so. At the

provincial level, there is sufficient confidence and comfort to allow us to

proceed and to commend this document to the Legislature for adoption.

M. Sather: Just a question on hunting, safety and

licensing. I think the minister has said that the Tsawwassen First Nation —

within their wildlife harvest areas, anyway — are not required to have a

licence, as hunters have to now. So do they have to carry some identification,

then, that they are members of the TFN? Do they have to have that at all times?

What are the sort of regulations around that?

Hon. M. de Jong: In this chapter, pursuant to

section 24.

M. Sather: Just one more question on

chapter 11. Under

section 10, the TFN and the province "…will negotiate and attempt to reach

agreement on a process to evaluate uses and Dispositions of provincial Crown

land that have the potential to deny to Tsawwassen First Nation the reasonable

opportunity to harvest…."

I know we've talked about similar sections in other parts, but I'm

still trying to understand what lands might potentially be disposed of here and

how that might affect the right of the Tsawwassen First Nation to harvest.

For example, are they thinking that maybe taking a part out of a

provincial park could somehow affect their right to harvest? I just wondered if

the minister could give me an example of what sort of dispositions of Crown

land…. How might they affect the potential of the TFN to harvest?

[1115]

Hon. M. de Jong: The reason this

section exists is to

provide confirmation that, in the event of development or devolution of land, if

the cumulative effect of that were determined at some point by one of the

parties — in that scenario, most likely the Tsawwassen — to be adversely

impacting their rights under this

chapter as it relates to migratory birds, it

provides a triggering mechanism whereby they can say: "Look, British Columbia,

we want to sit down with you and talk about this, because we think the following

activities, in a cumulative way, are adversely impacting our rights in this

chapter, and you have an obligation under

section 10 of

chapter 11 to sit down

and address that with us." That's the rationale for having the

section here.

S. Fraser: We are through with the migratory bird section,

chapter 11, and we are ready to move on to

chapter 12.

The Chair: On

chapter 12, Member.

S. Fraser: I'll be brief on

chapter 12. It's largely

federal issues dealing with national parks and national marine conservation

areas, which are certainly significant in the traditional territories of the

Tsawwassen people. There are quite a few referrals to Canada consulting with the

Tsawwassen First Nation in respect to a whole number of issues in this chapter.

I'm just looking at

section 31,

section 33 and then

section 34 and

on, dealing with cooperation in planning and management. There are a lot of

statements here talking about working cooperatively with Tsawwassen First Nation

and federal authorities, and I applaud that. Using traditional knowledge is, I

think, an integral part of our future with conservation measures.

I know it's federal, but considering the requirements for

consultation here — they're quite significant — are there resources for the

Tsawwassen First Nation to help make this happen at the federal level?

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

lies in reference to the fiscal financing arrangement. I'll take a moment to

applaud the member for again highlighting a key point in this agreement. And it

was a key point during the negotiations. In assuming jurisdiction in the variety

of areas that they are, the Tsawwassen First Nation is assuming a significant

level of responsibility. Much of the discussion would have related to: is the

capacity and the resource going to be there to allow for the responsible and

effective discharge of those responsibilities? The Tsawwassen are satisfied that

there are, we are, and Canada is.

[H. Bloy in the chair.]

Again, we come to a

part in the agreement where we are able to say

that yes, this is what the relationship is going to be. It's going to take some

people power. It's going to take some resources to discharge. That has

influenced some of the other discussions around the fiscal financing

arrangement.

S. Fraser: Just to finish off the question. Specifically,

in dealing with national parks and marine conservation areas, are there any

resources from the province that might be made available post-treaty that might

go towards these things, or is it all between the federal government and the

Tsawwassen First Nation?

[1120]

Hon. M. de Jong: I think, essentially, it's a tripartite

effort, particularly through the implementation stage. I can't identify any

specific provisions that would relate to this chapter. Suffice to say, it'll be

a tripartite effort throughout.

S. Fraser: That will conclude questioning on

chapter 12. I

know at least I'll have the critic ready to ask some questions on environment

issues with

chapter 13 on provincial parks.

[ Page 9003 ]

The Chair: Member for Vancouver-Hastings on

chapter 13.

S. Simpson: I've just got a few questions in relation to this

chapter 13, which deals largely with provincial parks and plant-gathering.

I'll go to gathering plants in

article 23.

Just as a comment before that, I see that there are a number of

areas before that that look very, very similar to previous chapters around

wildlife and migratory, and they seem to be somewhat boilerplate, the same

those as have been enunciated and explained by the minister previously, so I'm

not going to spend time on those things that I think are the same.

Going to

article 23 under "Gathering plants," it says: "The

Tsawwassen Right to Gather Plants will be exercised in accordance with an

approved gathering plan." I notice that if we go back and look at the wildlife

section, for example, the plan is pretty well enunciated or laid out in the

document as to what it might entail. Here that doesn't exist, and I'm wondering

why it hasn't been laid out as to what the requirements of a gathering plan

would be,

whereas it's pretty detailed in previous chapters.

Hon. M. de Jong: The member is right. It is far less

prescriptive than on the wildlife side. I do note, however, that it ultimately

has to be in a form approved by the minister, so there will undoubtedly be

discussions about the relevant substantive provisions that will be included

therein. I can't tell the member authoritatively what it will look like, but it

will need to cover the logical areas. It is not enunciated in a prescriptive way

in this document what the plant-gathering provision is going to look like.

Again, the similar limitations around conservation, public health and public

safety apply pursuant to

section 3 of this chapter.

S. Simpson: Could the minister just give a sense of how

that gets developed? I know with the wildlife it's pretty clear. As I said

before, there's a list of eight, ten or 12 areas that have to be laid out.

Presumably those will be done in a cooperative manner, because a lot of it is

pretty detailed information — we discussed that yesterday — and it's going to be

a challenge to do that. It's not easy to prepare those plans, and I'm sure

they'll be more complex in many ways than these gathering plans.

But they need to be laid out with very detailed information in a

number of categories around issues of conservation and amount that can be taken

and all of those things. So how is this going to be done? Who's going to do

this? Who's going to do this plan in regard to gathering? Is it Tsawwassen that

will come up and just lay this out, or will the ministry give Tsawwassen a list

at some point, saying: "Here are all the things you have to cover"? How's that

going to be handled?

Hon. M. de Jong: Insofar as the applicable geography, I've

been reminded of appendix M-2, so that helps define and focus the geography.

[1125]

Practically speaking, my expectation is that the Tsawwassen would

designate someone, either an individual or an individual leading a team, and

they would interact cooperatively with the ministry and come to an agreement

around the component parts of the harvest plan.

It will probably evolve. It'll be interesting to see if the plan

looks the same five years out as it does in the first year. Undoubtedly, both

the ministry and the Tsawwassen will learn some things in the initial stages and

the plan will evolve to reflect that.

S. Simpson: If there was disagreement around this, would

this go through the dispute resolution process as is laid out in the agreement?

Would it be available to go through that process?

Hon. M. de Jong: I don't think there's a specific provision

dealing with it, but I know and can advise the member that the parties can, by

consent, refer a matter such as this to the dispute resolution provisions of the

agreement.

S. Simpson: If the parties don't consent to that…. I

believe, under the dispute resolution, where it's set up, either party could

trigger that. It doesn't require an agreement that we're going to go to dispute

resolution. Either party, after they followed through the procedure, could

trigger the different steps.

Can either party just trigger this? Could the Tsawwassen trigger

this, even if the government didn't want to consent?

Hon. M. de Jong: I am advised that there is on this provision

no mandatory arbitration that can be triggered unilaterally by one of the

parties. That's why I made the point that they could avail themselves of that by

consent. But the provision around unilaterally triggering it doesn't exist, and

the authority, ultimately, on this issue is finally vested with the minister.

S. Simpson: On

article 25, just down from there, it talks

about: "The Minister will consult with the Greater Vancouver Regional District"

— or Metro Vancouver now, I guess it is — "before approving a gathering plan

that includes provincial Crown land within the Burns Bog…."

"Consult" is an interesting word these days. What does that mean,

and what ability does Metro Vancouver, the GVRD, have to influence that

decision?

[1130]

Hon. M. de Jong: I was tempted to stand and immediately

refer the member to

chapter 1, in the defined terms, where "Consult" is actually

a defined term. However, the member may note that in this

section "consult" is

with a small "c," so it does not attract — purposely, I might add — that legal

definition.

What I think we are left with is a more general understanding of

an accepted obligation to speak with one another, to engage. It does not bestow

powers of veto on any one group. It does obligate them to interact in a

reasonable manner, but it also does not attract the formal definition built

around that term in

chapter 1.

[ Page 9004 ]

S. Simpson: This leads on to questions we'll get into a

little bit around the planning and cooperation and management.

Part of the challenge here is that much of the management around

the bog and work on the bog is of a regional nature. They have a significant

amount of responsibility around that, and we know that the management plans

around the conservation of the bog and that are ongoing. They're not finalized

by any means, and that work will be ongoing.

As this consultation goes on, I guess, how does this management

issue get resolved in the interim, in terms of the Tsawwassen people being able

to use their unique rights around gathering plants? When the conservation plans

for the bog haven't been finalized by anybody at this point, who makes the

decisions in the interim about what can and can't happen there in terms of

gathering plants when we don't have all that information in place?

Hon. M. de Jong: To the member: he's correct. This is a

work-in-progress, and that work will continue in advance of the effective date,

which, as I indicated, will either be late '08 or early '09 — we hope, if we can

get the federal ratification legislation passed.

I'm told that the primary but by no means exclusive interest on

the part of the Tsawwassen members, as expressed to us, relates to a Labrador

tea that apparently is located in areas like the bog. The corporation of Delta

has undertaken, happily, to try and locate an area outside of the conservancy

area where the Tsawwassen can focus their gathering activities with respect to

Labrador tea and, I guess, any other plant that is of interest to them.

While that work is ongoing, happily there's cooperation to an

extent that will allow the Tsawwassen to address that area of interest within

the bog under circumstances that are apparently agreeable to all of the involved

parties.

S. Simpson: I notice that when you go through the

agreement, the agreement in the

chapter talks about the right to gather for

domestic purposes. It says, I believe, that the right extends to flora and fungi

but does not include aquatic plants.

[1135]

One of the plants in the bog that's quite abundant and, as I

understand, quite valuable for a number of people is the sphagnum moss, which

makes up a significant amount of the bog. It grows in water. Is it an aquatic

plant or a land-based plant for the purposes of this agreement?

Hon. M. de Jong: I don't know for sure. I'm looking at the

definition of aquatic plants. It lists the algaes and the phytoplanktons, marine

and freshwater flowering plants, ferns — and it says "mosses." I think the

member used the term "moss" in describing the substance. To a layperson, that

suggests to me that it would be covered by that definition of aquatic plant. I

should probably check because I'm not the authority, and I don't think any of us

here are.

S. Simpson: Just to be clear here, let's assume for a

minute that it's a moss, and it may be aquatic or not. I'm correct that this

agreement at this point covers off flora and fauna. It does not cover off

aquatic plant life — that's not part of what's agreed to here under this. Am I

right or wrong on that?

Hon. M. de Jong: I proceed cautiously on the basis of what

we hope is the correct assumption that the moss the member has referred to is

captured by the definition of aquatic plants. If that is so, it is our belief

that the rights extended in this

section do not cover the moss because it would

fall under the aquatic plant exception.

S. Simpson: Thanks for that. If it is that, then we'll

assume that that's the case — that it's not covered by this agreement. I assume

then that if there were to be any adjustments to the agreement in relation to

aquatic plants, it would need to be through some subsequent negotiation to

adjust the plan between the Tsawwassen people and the minister or the

government. I assume that in all these sections, there's always room to tweak

this down the road.

That is what would have to occur if there was an interest on the

Tsawwassen people's part to incorporate some aquatic plant–gathering in here.

They would have to do this through an amendment or an adjustment to the plan?

[1140]

Hon. M. de Jong: Although these are intended to be living,

breathing documents insofar as a relationship between the three governments is

concerned, they are not, by virtue of the ratification processes involved,

documents that lend themselves easily to legal tweaking. So I don't want to

mislead the member.

That is why, as other members have pointed out, the precision

around the language is key, because ultimately they are going to be largely

interpreted on the basis of what we see here, and I don't want to suggest

otherwise. The amendment process is a very complex one, although the agreement

does provide at a certain point for a review. That might be the logical time for

those kinds of things to be addressed.

S. Simpson: Moving to the

section on "Planning and

co-operation in management," from 30 on here. In 30 it talks about: "British

Columbia and Tsawwassen First Nation may enter into an agreement in respect of

the development of a cooperative working relationship in the Fraser River

estuary…." Could the minister tell us what's envisioned as to what this

cooperative working relationship might look like, both in terms of how it might

work and also how it might affect decision-making around the estuary?

Hon. M. de Jong: This is a provision that tries to look

forward and capture the interest that the Tsawwassen First Nation and the

province of British Columbia have in potentially negotiating an agreement that

defines a relationship for the management of that area of the Fraser River

Estuary south to the U.S. border.

[ Page 9005 ]

I'm told there have been various attempts to establish wildlife

management areas in the region, and both the Tsawwassen and the province want to

ensure that wildlife management in the area proceeds in a way that respects both

the treaty rights of the first nation as well as all of the relevant

environmental values. So it is very much a

section designed to look forward and

anticipate that further work.

S. Simpson: The process that is envisioned here…. It goes

on in the subsequent sections to talk about where public management is engaged

around these areas — so provincial parks and the parks that are part of the

broader treaty areas. I'm very curious, particularly around those provincial

parks…. We know that in other areas of the province, particularly around some of

the protected areas, there have been some agreements reached with the

government, with first nations around comanagement of those parks or protected

areas, I think up into the Great Bear area. There's been some agreement around

comanagement in that.

For the areas of the parks that fall within the treaty lands,

what's the thinking about how the parkland, in particular, gets managed? Is

there a comanagement strategy for that parkland? In terms of structure, is it

going to look like the comanagement systems that have been agreed to in some of

the other plans? What's the thinking here?

[1145]

Hon. M. de Jong: I think it's fair to say, on the basis of

the extended discussion we've had, that there is going to be a healthy degree of

interaction between the Tsawwassen and the parks branch in a variety of ways and

for a variety of reasons to achieve a variety of objectives.

I'm a little hesitant about the term the member used, because

that's almost exclusionary of others. I think management regimes are evolving

around parks that are designed to be as inclusive as possible of a whole host of

interested parties and stakeholders. In addition to the specified areas of

interaction that this agreement confirms will take place, the Tsawwassen will be

welcome and invited to participate in those planning exercises.

I'm hesitant. When the member or I use the term "co," immediately

others rise up and say: "Oh well, that doesn't involve me." The agreement is

certainly designed to ensure that the parties understand that there is a wide

range of interested parties who the government will want to continue to involve

in some of the planning decisions around the parks involved.

S. Simpson: Well, maybe we'll try a slightly different

question around the management, then. In the provincial parks where a portion

falls within the treaty lands in this agreement, the general public has access

to those parks. That's pretty clearly defined about what they can do and can't

do in the parks and what access they have and the requirements when you're in a

provincial park about what you can and can't do.

Is there any expectation that the requirements will change or that

they could be different when you walk 100 yards and walk inside parkland that's

inside the treaty lands — that requirements in that part of the park may be

different than they are in other parts of the park? Or is it the intention that

there's a set of rules for what you can do in a provincial park, and they will

be the same whether you're inside or outside treaty lands?

Hon. M. de Jong: I think I understand what the member is

driving at, but the terminology here is very clear. Well, there are no

provincial parks inside of treaty lands.

S. Simpson: I'll accept that. There are protected areas

that fall inside the treaty lands, inside the harvest area.

An Hon. Member: The wildlife area.

S. Simpson: Inside the wildlife area. Okay, good enough. So

we'll just extend the question there, then, and take that. I accept that. Thanks

for the clarification.

[1150]

Where the Tsawwassen band has rights within the harvest area,

where certain parts of the park's protected areas fall within that area, is

there any expectation that there will be different rules around public access

into those areas than there are in the areas of those parks or protected areas

that fall outside the harvest area?

Hon. M. de Jong: I don't envisage any.

S. Simpson: To finish up here, I just have a question in

regard to 34. It says that B.C. will consult with the TFN in respect to the

establishment, disposition, modification of boundaries, etc., in parks,

protected areas, or changes in use or designation of those areas. As the

minister says, the parks and protected areas aren't within the treaty lands;

they're within the broader harvest area. So is that to mean within that harvest

area?

Hon. M. de Jong: The purpose of the

section is to make

clear that if the provincial Crown were to take any measures as it relates to

any of the areas listed here — we'll take parks as an example — that one could

reasonably anticipate would impact on the right of the Tsawwassen First Nation

to exercise their rights under this agreement, that would trigger an obligation

to consult.

An example I thought of off the top of my head is if the Crown

decided…. I don't know all the access roads to the parks involved, but by way of

example, if there were a decision to alter or even decommission one of the

roads, and that were to impact the ability of the Tsawwassen to get to an area

where they have rights to gather, in that case there would be an obligation to

speak with the Tsawwassen about that and the impact of that decision.

M. Sather: I have just a small piece that I wanted to ask

the minister about, but noting the hour, I'd move that the committee report

progress and ask leave to sit again.

[ Page 9006 ]

Motion approved.

The committee rose at 11:54 a.m.

The House resumed; Mr. Speaker in the chair.

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

granted leave to sit again.

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

Motion approved.

Mr. Speaker: This House stands adjourned until 1:30 this

afternoon.

The House adjourned at 11:55 a.m.

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