1998/99 Legislative Session: 3rd Session, 36th Parliament
Volume 14, Number 7
[ Page 11833 ]
The House met at 2:06 p.m.
P. Nettleton: On behalf of this side of the House, we're delighted to welcome realtors from throughout the province who are advancing their issues with both sides of the House. As former realtors, I and my colleague the member for North Vancouver-Seymour have some sense of the challenges that face you, and we wish you well. Again, we would ask that all members join in welcoming realtors from throughout the province.
R. Kasper: Hon. Speaker, we have present, sitting on the floor, a constituent of yours and a former member, Mr. Fred Jackson. Fred is also here representing the Greater Victoria Real Estate Board. I'd like the House to welcome him.
Hon. C. McGregor: While I don't have the honour of describing myself as a realtor, I've been a homeowner. I think that's important to the real estate members who are here today, as well.
I'm very pleased to introduce three members from the Kamloops Real Estate Board who are here with us today: first, Linda Heinen, who's the newly elected president of the Kamloops and District Real Estate Association; Caroline Boles, who's the immediate past president of the Kamloops and District Real Estate Association; and Patrick Lindsay, the present executive director of the Kamloops and District Real Estate Association. I'd like to welcome them and, of course, my former neighbour, Fred Jackson. I'm very pleased to welcome him here in the House as well. Would the House please make them all welcome.
L. Stephens: Today I would like to introduce to the House two members of the Fraser Valley Real Estate Board: my realtor and a resident of Langley, Ms. Tammy Evans; and Dan Bennett, who is a realtor in Langley as well. Would the House please make them welcome.
M. de Jong: It's a pleasure to see two friends of mine in the gallery, Terry McSpadden and Angela Clayton, and to see them dissociated from their pagers and cellular phones for just a few moments. They are with the Fraser Valley Real Estate Board, and it's great to have them here.
Hon. J. MacPhail: I'd like to join the member opposite in welcoming Dan Bennett, who is the president of the B.C. Real Estate Association, as well as coming from Langley. With him is Gerry Thiessen, who is the past president of the B.C. Real Estate Association. So I would make them welcome to our Legislature.
W. Hartley: Today in the members' gallery are a couple of friends that I've known for many years: Craig Speirs and his spouse Diane Speirs. Craig is here to receive recognition as a 25-year employee in the town of Maple Ridge, and he has done an extremely valuable service for our community. Please make them welcome.
D. Symons: I would also like to introduce one of the realtors, Valerie Berg. I knew Valerie in a previous life, before being elected. I was her math teacher many, many years ago. I won't say how many -- for her sake and mine. Would the House please make Valerie welcome.
J. Reid: It's my pleasure today to introduce to the House two people: one is Ray Francis, a realtor from the Comox Valley, and the other is Jim Stewart, also a realtor and the president of my riding association. Would the House please make them welcome.
J. Cashore: In the members' gallery are two friends, Ron Patterson and Mike Halvorson. Ron is a Coquitlam resident and a school principal, but he's also someone who, along with his wife Barbara, founded a local chapter of the Compassionate Friends of British Columbia. It's an organization that assists the extended families of those who have suffered a tragic loss, and it assists them with the grieving process. Mike Halvorson is a student at SFU. Would the House please join me in making them welcome.
Hon. D. Streifel: I could have waited a bit longer, hon. Speaker; I'm building knee and leg muscles, up and down here. I'd like to recognize a couple of friends of mine in the gallery. They're with the Fraser Valley Real Estate Board.
The Speaker: Hush, members.
Hon. D. Streifel: You know, I never get the opportunity to get on my feet without getting heckled, even when I'm introducing my friends in the House. I think the folks opposite are extremely rude. Anyway, I said it with a smile, but it was serious.
I'll get on with my introduction. Barb Whitman and Donna Lou Gilbert are here from Mission and from the Fraser Valley Real Estate Board. They're here with their families. I expect to meet with them later. I enjoyed the social with them last night and, in particular, speaking with Donna Lou on the project that she has underway. I wish her luck and offer my help. So make them welcome.
G. Hogg: It's been a pleasure and an honour to follow the Minister of Fisheries in his introductions. I too would like to join in welcoming some members of the Fraser Valley Real Estate Board to the House today, particularly the president, David Herman; Barbara Wightman, the chair of the legislative and public affairs committee; and Valerie Berg from the riding of Surrey-White Rock. Also, I believe Barbara's grandson is here, Andrew Delmonico. He has been here before, and he is a sportsman and afficionado of politics. So would the House please make them welcome.
And one more. I note that my constituency assistant, Verna Logan, is here, as well as a volunteer who has worked in my office and is the owner of the South Surrey Eagles, the junior A champions of Canada. Would the House please welcome Verna Logan and Maureen Annable.
R. Neufeld: I resisted up until now. I thought we were going to make introductions from each side, but
[ Page 11834 ]introduce them. Carolyn Krauss is here. She's a good neighbour of mine who just lives a few doors down. I'd like to welcome her to Victoria and hope she has a good time watching question period.
J. van Dongen: On behalf of my colleague from Fort Langley-Aldergrove, I would like to welcome 44 enthusiastic grade 11 students from Walnut Grove Secondary School in Langley. They are accompanied by their teachers: Victor Penner, Doug McGinn and Burns Madden. I ask the House to make them all welcome.
I. Chong: I too would like to join in welcoming some of the realtors -- in particular, two who have been my liaison for the last few years. They've always shared ideas with me, and I think we've had great exchanges. I would ask the House to please welcome Alexis Beddoe and John Smith.
G. Robertson: With us today in the House we have Al and Pat Hodgkinson. Al is here today with his wife Pat, representing a prostate support and awareness group from Campbell River. This is a group that does a lot of advocacy work and information and provides a lot of comfort and support to people who come down with this terrible affliction. Al and Pat were with us today at the ground-breaking ceremonies for the new cancer treatment facility in Victoria at the Royal Jubilee Hospital.
Also, I'm really pleased to say today that I have some very special guests: my daughter Kimberly and her cousin and my niece, Krista Robertson. Krista is from Toronto and is out visiting us on the west coast. It's really a pleasure to see them both in the House today and have them in the building. So I'd ask the members to please make them welcome.
Hon. L. Boone: I would hate for individuals to think that Prince George didn't have any realtors, so I'd like to greet Dino Sinopoli and Judy Gaboury, who are here. With them is Dorothy Friesen, somebody who has been here many, many years -- as long as I have been elected. Dorothy has been with the real estate board in Prince George. They have just changed the name, so I can't say what the name of that board is now. It's no longer the Cariboo Real Estate Board; it's something else.
Hon. L. Boone: It's the B.C. Northern Real Estate Board -- okay. I would certainly ask the House to welcome them all here.
E. Gillespie: I'd like to acknowledge and thank the executive and the staff of the B.C. Real Estate Association for the work they do for all realtors and thank them for the reception they provided for us last night. I'd also like to introduce a constituent and a realtor with the Vancouver Island board, Ray Francis. Would the House join me in making him welcome.
R. Thorpe: On behalf of my colleague the member for Okanagan-Boundary and myself, I'd like to welcome Don Selby, who's representing all the hard-working real estate agents in the South Okanagan. Would the House please welcome Don.
The Speaker: For all the others in the gallery who didn't get mentioned: welcome.
PAYMENT FOR PREMIER'S HOME RENOVATIONC. Clark: When the Premier was on this side of the House, he used to point across at Bill Vander Zalm and say that his problem was that he couldn't tell public interests from private interests. Will the Deputy Premier tell us today exactly what the difference is between $20,000 in home renovations done by casino licensees and $20,000 in a brown paper bag?
Hon. D. Miller: I hope that members will listen to this point, because I think it's an important one. After a very divisive debate in the eighties we made a fundamental decision in this chamber to bring in legislation called conflict-of-interest legislation. That legislation provides an opportunity for anyone -- for members or members of the public -- who feels that they have evidence of some wrongdoing or violation of the act to take that information to the commissioner and have that issue adjudicated. I would have thought that that would have ended the necessity for the kind of muckraking that this Liberal opposition is indulging in today.
The Speaker: Members, come to order.
First supplementary, the member for Port Moody-Burnaby Mountain.
C. Clark: When the Premier was on this side of the House, he used to talk a very good game about Bill Vander Zalm's inability to tell the difference between public and private interests. Now he sits there today, and he looks a heck of a lot more like Bill Vander Zalm with a union card.
Will the Deputy Premier tell us why it is now okay to have someone build your deck -- to have your friend do $20,000 worth of home renovations -- while at the same time you grant that friend a conditional casino licence-in-principle -- or whatever they want to call it -- worth millions of dollars, despite the fact that the local government doesn't want it and despite the fact that it's connected with illegal gambling?
The Speaker: Order, members.
Hon. D. Miller: Let me make two points. One is to reiterate the answer I gave in response to the first question -- there is a process -- and to point out that in fact it's the Premier who has asked the conflict-of-interest commissioner to make a ruling on these questions. The Premier has asked. He's taken the right route; he's using the legislation that's available to all members -- unlike the members opposite.
The Speaker: Order, members.
[ Page 11835 ]Hon. D. Miller: The second point I want to make is this: I would invite that member -- and I will give you a guarantee now that she will not have the courage -- to step into the corridor and repeat that question she just asked, verbatim. She will not have the courage. I invite her to do just that.
The Speaker: Order, please.
CASINO APPROVAL PROCESS AND PREMIER'S LINKS TO APPLICANTG. Plant: On July 29 of last year, this government's cabinet apparently decided to hand over all authority for granting casino licences to the gambling minister. According to the taxpayer-funded lawyer hired by the Premier at our expense, the Premier was at that meeting. So my question is to the minister responsible for gambling: will he tell us when the Premier, Adrian Dix or any other member of the Premier's staff first discussed with him this change in the casino approval process?
Hon. M. Farnworth: There has been no change in the casino approval process in any way, shape or form. What I would say to the hon. member is that there is an investigation underway by the conflict-of-interest commissioner. He is reviewing the entire process of how things were handled at the cabinet table, and he is making his report. In due course, he will release that to this House, where the member will be able to see everything that went on. I would say to the hon. member that if he has anything that says he knows something that happened there other than phony allegations, he go to the conflict-of-interest commissioner and outline them to the conflict-of-interest commissioner.
The Speaker: First supplementary, the member for Richmond-Steveston.
G. Plant: The phoniest thing of all is this minister's refusal to answer even the most basic questions about this.
Let me try another question -- a factual question. The minister may even know the answer to this question. When did the Premier, or Adrian Dix, first tell the minister of the Premier's connection to Mr. Pilarinos and the North Burnaby Inn casino application? Was it before or after cabinet gave the minister the power to award licences?
Hon. M. Farnworth: Again, I would like to say that the only thing that I find phony is a member who is supposed to be a lawyer and who is supposed to have legal ethics wanting to sacrifice them to make political points.
Hon. Speaker, I made a statement. I was asked that question a number of times, and I was made aware very early on after becoming minister that the Premier knew Mr. Pilarinos. Having said that, my point to the member is that if he thinks there is anything untoward, or if he thinks there is anything that has not been disclosed, then he should go to the conflict-of-interest commissioner. Use the laws that are in place. You're supposed to be a lawyer. I'd have thought you'd have known that.
The Speaker: Minister, minister
PAYMENT FOR PREMIER'S LAWYERJ. Weisgerber: My question is for the Attorney General. In 1990 the member for Esquimalt-Metchosin, the now passionate defender of the Premier's privacy, released the Bud Smith tapes. These illegal recordings of a private conversation between the then Attorney General and an assistant deputy minister in the Attorney General ministry resulted in legal action by a lawyer named in those conversations. Mr. Smith was denied his legal costs. Given this important precedent, how can this Attorney General possibly justify his decision to pay for the Premier's high-priced lawyer?
Hon. J. MacPhail: Hon. Speaker, we've made clear that the policy, which was on an ad hoc basis up until 1996, was made clear to everyone -- that in the course of the performance of duties, legal counsel will be provided up until a wrongdoing is found.
The Speaker: First supplementary, the member for Peace River South.
J. Weisgerber: First of all, let me say that yesterday the Deputy Premier said that it was a longstanding practice in this House. Today we understand that it was a 1996 decision to start covering legal costs. But let me say this: Bud Smith was clearly acting in his official capacity as Attorney General when making the call that was illegally taped and then released by the urban cowboy from Esquimalt-Metchosin. The government denied Mr. Smith his legal costs, even though ministry officials had their costs covered.
But the New Democrats have chosen to treat themselves differently. The Premier's home was only one of many sites named in the search warrant that led to the search at the Premier's home. The Premier himself denies
The Speaker: Member, your question please.
Hon. J. MacPhail: Hon. Speaker, there has been an ad hoc approach to these matters up until late 1995-96
The Speaker: Members
Hon. J. MacPhail:
[ Page 11836 ]
ABORIGINAL AFFAIRS MINISTRY CONSULTANT'S CONTRACTM. de Jong: Well, John Heaney has followed a pretty interesting career path with the New Democratic Party.
The Speaker: Members, come to order.
M. de Jong: He started as damage control specialist on the Nanaimo bingo scandal, then he went over to the Nisga'a implementation propaganda office, and now he's taken over damage control on the Casinogate file involving the Premier. So now that his job with the Nisga'a office appears to be finished, will the Minister of Aboriginal Affairs confirm that he was paid $114,265 for a contract that was extended five times within his ministry?
Hon. G. Wilson: I believe that those figures are about right.
The Speaker: First supplementary, the member for Matsqui.
M. de Jong: Well, here's the additional piece to the puzzle. According to the guidelines set out by the comptroller general, all contracts with a total potential cost of over $50,000 are to be "awarded competitively, either by open advertisement or by invitations to bid issued to three or more potential suppliers." Guess what, Madam Speaker: no tender, no invitation. Will the Minister of Aboriginal Affairs tell us why the comptroller general's guidelines were bypassed and ignored for Mr. Heaney, the NDP's very good friend?
The Speaker: Order, members.
Hon. G. Wilson: The guidelines were not violated. All of the documentation has been provided to the Liberals through FOI. They have exactly the documentation information. They know full well, if they know how to read the documents, that in fact the guidelines have not been violated. I find the question to be completely irrelevant.
G. Farrell-Collins: It appears, hon. Speaker, that Mr. Heaney's contract was originally written up at $15,000 so it wouldn't fall within the $25,000 and $50,000 caps that are required. It was very quickly -- within days, almost -- extended to $25,000. Then it jumped up a full $50,200, to a total of $75,200. Then it promptly became $94,700, followed shortly by $103,800, and then, on the fifth occasion, went to $114,265. Does the Minister of Aboriginal Affairs believe that the way these contracts were granted falls within the guidelines that the comptroller general and the auditor general made with regard to the Now Communications fiasco in 1994?
The Speaker: Order!
Hon. G. Wilson: I'm delighted that the members opposite can at least read the contracts they've been given. The fact is that the contracts for Mr. Heaney were extended on a number of occasions, because the work and duties he was required to do were extended in light of the Nisga'a debate, which was not concluded and remains to be concluded even at this time. So there is nothing untoward, nothing unusual and simply nothing that violates any of the guidelines in any of the information that has been made available to the members.
The Speaker: First supplementary, the member for Vancouver-Little Mountain.
G. Farrell-Collins: In fact, the auditor general, in his report into the Now Communications fiasco and the way the government had bypassed the guidelines at that time, made recommendations and said that those contracts were deliberately constructed to mislead and misrepresent, in order to get around the guidelines that were in place. He said it should never happen again.
Well, it's happened again. It's happened for the NDP's best friend. This contract was amended five times -- to go from $15,000 to $114,000. In all good conscience, does that member, who sat on this side of the House and complained about those issues at the time, believe that these guidelines were followed? Or is he now completely morphed into a total New Democrat?
The Speaker: Members, I know the minister will not violate the guidelines, and the answer should be brief.
Hon. D. Miller: Absolutely -- at least as long as the question, hon. Speaker.
I was simply going to say that I suppose both caucuses can indulge in attacks on staff. We can talk about the million-dollar mailer; we can talk about the staff who were fired to take a fall because the Leader of the Opposition was embarrassed. But most of all, I want to say that British Columbians are asking more and more what the fiscal plan of this opposition would be. I have even been asked whether or not their fiscal plan will be the same as one used on the Georgian Court Hotel. People are even asking me that.
The Speaker: The bell concludes question period.
P. Calendino: I ask leave of the House to suspend the rules to permit the moving of a motion to adopt the report.
P. Calendino: I move that the report be adopted.
[ Page 11837 ]I would just like to say a few words before we adopt it, to explain the process and to give my thanks and the thanks of the committee for the work of the office of the Clerk of Committees, who assisted us in making this selection.
We had about 238 applicants from all walks of life and from all across Canada. We had a number of interviews. We interviewed ten very, very good candidates. We finally came to a conclusion last Friday. I'm pleased to say that we have selected Mr. Howard Kushner as the next ombudsman for British Columbia.
If I can take a second, I would just like to say a few words about Mr. Howard Kushner. He brings a strong background in constitutional and administrative law and the operation of government to the office of the ombudsman. He is currently director of legal services for the Yukon Department of Justice, a position he has held since 1996. He has also lived in British Columbia and has taught in the faculty of law at UBC. He has wide experience in constitutional and other law.
Hon. Speaker, we can move the adoption of the report.
The Speaker: Before we put the question, I'm going to ask the member who is the Deputy Chair of the committee to say a few words.
C. Clark: As the Deputy Chair of the committee, I'd simply like to add that Mr. Kushner came very highly recommended to our committee. He is highly esteemed by all of his colleagues that he has worked with. I know he will bring with him the judgment, the integrity and the intelligence that we need to do this job. I am indeed very honoured to add my welcome on behalf of the official opposition and to make my recommendation on behalf of the committee to this Legislature for Mr. Kushner to become the next ombudsman of British Columbia.
The Speaker: Hon. members, I put the question. The question is the adoption
The Speaker: Order, please. Members, we are in the middle
The Speaker: Hon. members, we are in the middle of putting a motion, and everyone knows the rules about that: no debates, no discussion. The question is the adoption of the report.
P. Calendino: I ask leave of the House to permit the moving of a motion requesting the Lieutenant-Governor to appoint Mr. Howard Kushner as the ombudsman for the province of British Columbia.
The Speaker: Members, it was very difficult to hear that motion because of the interruptions that are going on on the floor. I ask those interruptions to stop right now. All right. Member for Burnaby North, would you put your motion again, please.
P. Calendino: Okay, hon. Speaker. I ask leave of the House to permit the moving of a motion requesting the Lieutenant-Governor to appoint Mr. Howard Kushner as the ombudsman for the province of British Columbia.
P. Calendino: I move that this House recommend to His Honour the Lieutenant-Governor the appointment of Mr. Howard Kushner as a statutory officer of the Legislature to exercise the powers and duties assigned to the ombudsman for the province of British Columbia pursuant to the Ombudsman Act.
B.C. BOOK WEEKHon. I. Waddell: I rise to make a ministerial statement. As Minister of Culture, I'm pleased to proclaim April 17 to April 24 of this year as B.C. Book Week. Throughout the coming week, British Columbians are encouraged to celebrate the enormous amount of literary talent that exists within our province.
Many British Columbians are perhaps unaware that our province releases over 700 book titles per year, which range from local and natural histories to children's literature to books of poetry and novels. The publishing industry in B.C. is an important cultural industry worth $60 million per year to small businesses associated with the province's cultural sector, which overall employs more than 50,000 British Columbians.
Over the coming months, I am looking forward to talking to publishing industry representatives about how we can foster stronger economic activity and awareness with regard to our cultural heritage. British Columbia has the highest per-capita rate of readers in Canada, and our province continues to produce many extraordinary writers.
Today I have with me a few examples of some fictional works which are presently in the running for some prestigious awards. Pool-Hopping and Other Stories, by Anne Fleming, has been short-listed for the 1999 Ethel Wilson fiction prize; and Understanding Ken, by Pete McCormack, is a contender for the 1999 Stephen Leacock Medal for Humour. These are just two examples of recently published pieces of B.C. literature.
As I speak, people everywhere are reading works by young people's writers
The Speaker: Order, please.
Hon. I. Waddell: People are reading in this province.
[ Page 11838 ]
I encourage all British Columbians to attend local events next week at libraries, schools and community centres to discover the quality of B.C. books and their unlimited source of inspiration. As my own personal contribution, I invite the members to come on Saturday to the library in Vancouver to join with me. We'll be reading some poetry by B.C. poets. I hope members will come, will read out loud and read quietly next week, and will celebrate B.C. Book Week.
R. Thorpe: When the minister first rose, I thought perhaps the government was launching a cookbook and, with the first recipe, maybe a fudge recipe. I have firsthand knowledge about writing and publishing in British Columbia, as my wife together with three other women in Penticton
The Speaker: Order, members.
The minister states that he will be meeting with writing and publishing interests in the future. With this government, it's always about tomorrow. I'm kind of intrigued that since we knew this was going to be Book Week
The minister talks about supporting British Columbia writers. On February 18, at the Stanley Theatre in Vancouver, he announced a $1.5 million cultural and heritage fund which would assist B.C. writers. That was the promise -- now the rest of the story. When some young high school students writing a project in Langley applied for a grant under the minister's program, they were told that publishing would not be funded. Ministry staff said it was an unfortunate mistake.
Writers in British Columbia have great talents. The official opposition applauds their efforts and encourages all British Columbians to read more books, to buy more books and to support British Columbia writers. I ask everyone to be strong supporters of all publishers and writers in British Columbia during Book Week.
The Speaker: The Minister of Small Business, Tourism and Culture rises?
Hon. I. Waddell: Yeah. I rise under standing order 17 to correct a statement that was made, and I ask leave to do that. The hon. member is simply wrong. I would think he would welcome B.C. Book Week
The Speaker: Minister, minister.
Hon. I. Waddell:
The Speaker: Minister, order. The minister will take his seat. To correct a statement is not to debate the point but to correct the statement. I thank you for your intervention. Stay in your seat.
The Speaker: Members will come to order. I remind all members, ministers and those who reply to ministers' statements -- a comment to all ministers and to those who reply to ministers -- that the content of their statements is to be with as little controversy as possible, because it can produce other kinds of reactions. I would encourage all members to take that into account.
NISGA'A FINAL AGREEMENT ACT
On the schedule, chapter 11 (continued).
M. de Jong: We were dealing, when we left off, with sections 19 to 23. If I can ask a final question around this
What does the government say to those people -- admittedly a small number of people -- who will be different than every other Canadian, different than every other British Columbian insofar as their ability to fully participate in the political processes involving their local government? They don't have those full rights. What does the Attorney General say to those people whose rights are being adversely impacted by this treaty? If there is a group of people who deserve an answer to that question, surely those people are the ones. And the Attorney General should be in a position to -- and I hope will -- address that issue insofar as it impacts, in a very real way, on those individuals.
Hon. U. Dosanjh: I'm sure that like other British Columbians, they will be able to look at the purposes of this treaty, the genesis of this treaty and the way the treaty was negoti-
[ Page 11839 ]ated and understand that this is about the negotiation of Nisga'a rights, Nisga'a lands, Nisga'a culture, Nisga'a language and Nisga'a governance to a great extent. To the lesser extent that their rights may be impacted, they have been provided with opportunities to participate in those institutions whose activities might impact their lives.
I think that's the position that the government of British Columbia takes, that's the position that the government of Canada takes and that's the position that the Nisga'a take. Only by understanding where this treaty comes from and how it's got to where it is can they satisfactorily understand that it is not about depriving them of anything; it is about empowering the Nisga'a people.
[P. Calendino in the chair.]
M. de Jong: I understand that motivation. Maybe that is the answer, then. In the competition between providing that empowerment to the Nisga'a, in the government's mind
After an hour of debate, the point has been made that I think and the official opposition thinks that that was a poor choice in these circumstances. Over the long haul, it is a choice that does not bode well for the kind of British Columbia that most people want to see built.
Hon. U. Dosanjh: We disagree with his understanding of the issue.
M. de Jong: Unless there are other members that want to deal with those sections, the next heading deals with the transitional provisions of the agreement.
I'm looking at section 27. The general question relates to the mechanical process by which this drawing down of powers is going to take place and how we get from that articulation of an intention to exercise a jurisdiction to the point where that is actually taking place. It's a general question about how section 27 is going to operate in practice.
Hon. U. Dosanjh: I think the answer is to be found in paragraph 28, which sets out what occurs after the notice has been given. I believe that will satisfy the hon. member.
M. de Jong: We can go to paragraph 28. What I was trying to get a better sense of by asking the question
Hon. U. Dosanjh: These assets would perhaps be in the nature of buildings and facilities regarding health and schools and, if they exercise the authority to establish a police board, perhaps the police building and the like.
M. de Jong: I guess I am seeking a little bit more particularity. It's a fairly small community. We have a school in New Aiyansh and a school in, I think, Greenville -- I'm using the old terms. Beyond the real estate, beyond those traditional facilities, I'm wondering if there's an RCMP detachment. I'm not sure if that is an asset -- well, I suppose it would be -- that would be captured under these provisions. Are there other facilities? Beyond those that we've discussed, is there other real estate -- other facilities -- that would be captured?
Hon. U. Dosanjh: There might be. I'm going to try and provide a general answer to this. This is somewhat like an estimates debate, and I don't have all of that information. The hon. member is asking that question, and we can get that information through the Ministry of Aboriginal Affairs and provide that information at some point in the next couple of days. But let's get on with talking about the impact of the laws themselves.
M. de Jong: I appreciate that. Maybe we can add a further component to the previous question. I think that whenever the Crown, the government, presumes or enters into an agreement that calls for the transferring or potential transferring of assets to another agency, it is a legitimate question for members of this House to ask what the value of those assets is. I guess the first question would be: has an accounting, an inventory, been done which provides an indication as to the value of those assets which are potentially captured under sections 27 and 28?
Hon. U. Dosanjh: I understand that the initial view of the ministry is that the school board facility is very old and perhaps not of much value. The health board facilities were not evaluated, nor were the RCMP's.
M. de Jong: Was any evaluation done, therefore? I think it's a relevant question when the Crown
Hon. G. Wilson: I think that the member opposite would recognize that one would have to do an evaluation at the time that we were going to proceed. I mean, values will alter. The buildings that are there are old. They have depreciated in value; in fact, their capital depreciation, we believe, is zero. So outside of the facilities the member is referring to there, there would be a negotiated value when and if the Nisga'a decide to proceed, and we'd move on.
[ Page 11840 ]M. de Jong: There are two things that flow from that. I thought I heard the minister say that the estimated value was zero, and I wasn't sure what he was referring to when he said that.
Hon. G. Wilson: With the exception of the school in Gitwinksihlkw, which is fairly new, and in which there is still value, the other three schools and the teacherages have been
M. de Jong: Does that answer include
Hon. G. Wilson: Well, there is a school in every village, but I'm not aware of schools that are unoccupied. So it does include those schools.
M. de Jong: The other thing the minister said was that at the time the transfer of one of those assets takes place, there would be an evaluation. That's interesting. I'm wondering why that would be. What is the significance of that evaluation taking place? For example, if the police station is going to be transferred, what flows from having done that evaluation? Is there consideration flowing, and is there a reason for doing that?
Hon. G. Wilson: I'm tempted to say that there is no particular value to it. You asked the question, and I'm trying to find you an answer. When and if the new schools are to be built or a new police station is to be built, there will have to be a capital valuation placed on the structure, there will have to be negotiation, and we'll have to move on.
M. de Jong: Well, if I didn't hear the minister correctly the first time, I apologize. But what he says now isn't what he said earlier. All we're trying to establish is a process by which assets flow -- assets transfer from the Crown in the right of the province of British Columbia to another agency -- and if the Deputy Premier finds that a meaningless topic to explore during the course of this debate, well, too bad for him.
M. de Jong: I'm sorry; I didn't hear the Deputy Premier.
I think that my colleague may have a question with respect to section 26.
G. Plant: First of all, to follow up on one aspect of the discussion that has just been held, some of the assets that are being discussed may sit on what is now provincial Crown land or land held by a provincial Crown agency. Some of those assets may sit on what is now reserve land. We're talking about a range of buildings including the police station and the schools. It may be that they're all on what is now reserve land. But in the discussion about the value of assets that has been held to this point, there has been discussion
I want to ask about the land and where that fits in terms of these transfers. It may be that all of the land in question is already Nisga'a reserve land, and there just simply are other
Hon. G. Wilson: The answer to that is no.
G. Plant: Why?
Hon. G. Wilson: Because there are no improvements on any of the Crown land that's being transferred. They sit on reserve lands.
G. Plant: All of the assets which are the subject matter of paragraph 28(b), insofar as they consist of buildings, therefore sit on what is now Nisga'a reserve land.
Hon. G. Wilson: Yes, that's right.
G. Plant: I want to ask a question that flows out of the relationship between paragraph 26 and paragraph 4. The minister will recall that paragraph 4 says: "The exercise of Nisga'a Government jurisdiction and authority set out in this Agreement will evolve over time." Paragraph 26 is a statement of acknowledgment by the parties about the desirability that "the exercise of Nisga'a government authority be introduced in an effective and orderly manner." I take it, then, that paragraphs 26, 27, 28 and 29 are all part of the concept that it's open to the Nisga'a to draw down powers in the exercise of powers over time. Perhaps I could get the minister's confirmation that that's the basic intention here.
Hon. U. Dosanjh: Yes.
G. Plant: Let me say this. I can understand the public policy rationale, from both the Nisga'a and the province's perspective, in permitting some flexibility around the way in which the Nisga'a government will develop over time. I think I can also understand the rationale that lies behind the idea of providing that Nisga'a government powers are permissive, because it gives the Nisga'a the option to decide whether, in effect, they're going to continue to rely on the existing legislation of either the province or Canada and see whether that does or doesn't work for them and, at some point in the future, make decisions one way or the other about that.
To get a sense of the legal limits, if you will, of this, providing that the specific requirements in paragraphs 27, 28 and the first half of 29 were fulfilled, is there any bar to the Nisga'a essentially drawing down all of their government powers virtually immediately?
Hon. U. Dosanjh: No.
M. de Jong: I have some questions relating to sections 30 and 31. I will say that I don't presume we will spend as much
[ Page 11841 ]time on this as we did on sections 19 through 23, but I think this is one of those sections in the agreement that is important from the perspective of determining whether or not the government and proponents of the treaty are correct when they suggest that there is nothing new being created here -- no form of government that isn't presently known. When one considers the onerous obligation that is being placed upon the government of British Columbia with respect to its own ability to enact laws on behalf of the citizens of British Columbia, I think you begin to get a better understanding of the differences that distinguish the Nisga'a government from any other form of local government.
I think if we could start there, by asking the government -- whichever minister is going to handle these questions -- to provide some manner of explanation or a description of where else in Canada and in British Columbia that obligation to consult prior to amending or enacting laws in areas that fall exclusively within the provincial jurisdiction exists. Does it exist, for example, with respect to any other municipal entity in the province of British Columbia? I'm not aware that it does. But if the government is of a view that it does and that this is nothing more or less than an obligation it has in other areas, then I'm interested in hearing that.
Hon. U. Dosanjh: I can tell you from my experience -- and I could by wrong, but I don't believe I am -- that since my time here, for the last seven to eight years, I have never seen one amendment to the Vancouver Charter without the request first coming from the city of Vancouver or the city of Vancouver being heavily consulted and agreeing to a charter amendment. That may not be embedded in law, but there is a practice and a convention. I think that when one wants to look at comparisons, one has to keep in mind that sometimes the practice has almost the status of a legal convention in relations with municipalities and the like.
M. de Jong: Surely, though, the Attorney General would agree that this is something far different, that this is an obligation that extends far beyond amendments to, for example, the Vancouver Charter. If we refer to that as the enabling document for the establishment and maintenance of the city of Vancouver, I think it makes equal sense to say that if either party presumed to want to amend this document, not only would notice be required but so would the agreement of the other parties.
This is an obligation that I think it can be fairly said extends far beyond that. If an amendment is going to be made to an existing statute that in any way, shape or form can be said by the Nisga'a themselves to somehow impact on them, an obligation exists. That's a far different thing than the convention or the protocol that the Attorney General has referred to. Of course, it's not a protocol in this case; it is a legal constitutional obligation. I think that's far different.
Hon. U. Dosanjh: I think that this obligation in paragraph 30 requires that all of the four conditions be met before the obligation to consult arises. Those obligations are enumerated in 30(a), (b), (c) and (d). Paragraph (d) says: "The proposed amendment would result in the Nisga'a law ceasing to be valid." I think it's only appropriate, if we negotiate an agreement between the federal government, the provincial government and the Nisga'a, to give them the lawmaking authority and that if we're going to render their law invalid, we at least consult with them. There's no bar to doing that.
M. de Jong: The Attorney General will note that I haven't said that under the regime, the model, that's been adopted here, what appears here doesn't make sense. I may have difficulty with the model itself. But the government, having made the decision to adopt it, might
G. Plant: God, that's tiresome.
M. de Jong: Yeah.
G. Plant: I'm sorry.
M. de Jong: We hear constantly from the government
The question that I'm asking, I suppose, is: how can one make that argument on the one hand and on the other hand recognize that in creating this model of self-government, a significant new burden is being placed on the provincial government, which doesn't exist with respect to any other local government in the province? Surely that is a distinguishing feature that the Attorney General will recognize as distinguishing this from what his own government has termed a municipal-style government.
Hon. U. Dosanjh: It's not an onerous burden. It is appropriate that there be provisions that allow for some consultation, where legitimately made laws by Nisga'a government can be rendered null and void, although they've been granted the power by way of negotiations in the treaty to make those laws. It makes immense sense to allow for that consultation, and that's all we're doing.
G. Plant: I think the wisdom of the practicality of consulting is not, for me, a significant question in this context, although I have made the point -- and still hold to it -- that there's an awful lot of consultation obligations built into this document. The cumulative total of all those consultation obligations may be somewhere between impractical and burdensome. But it doesn't strike me as being wrongheaded for the province to say, as a practical matter, that there should be some consultation here. I also am mindful of the fact that the circumstances in which that obligation arises are carefully circumscribed in paragraphs (a) through (d).
I don't think Canada has undertaken the same obligation. Perhaps I could ask the Attorney General if I'm correct in that assumption.
Hon. U. Dosanjh: The hon. member is correct. Just for his information, some of the areas of consultation would be forestry; then law re creation of estates or interests in chapter 11, paragraph 44 or 46; then paragraph 72, "Traffic and
[ Page 11842 ]Transportation"; paragraph 89, "Child and Family Services"; paragraph 96, "Adoption"; paragraph 100, "Pre-school to Grade 12 Education"; and paragraph 103, "Post-Secondary Education." Those are all areas where we are agreeing, by way of this tripartite agreement, that they would have some jurisdiction. It's only fair, if we're going to deal with those issues in any significant way to alter that, that we consult with them.
G. Plant: Well, let me just explore the issue of Canada for a moment. I can't identify, off the top of my head, similar situations that might exist in respect of federal authority -- federal paramountcy, for want of a better term. The list may be a very short one. But is there logic, from the province's perspective, in the province having accepted this constitutional obligation in circumstances where Canada has not?
Hon. U. Dosanjh: I think the areas that I discussed or indicated are provincial areas, and I'm given to understand that none of the areas where the Nisga'a are to meet certain standards relate to federal issues.
G. Plant: That really is the point that emerges from paragraph 30(c). That's the distinguishing characteristic. It's that the issue of validity turns on a comparison between the two laws.
Hon. U. Dosanjh: Yes.
G. Plant: Maybe I should say that I am mindful that the circumstances in which paragraph 30 will operate have been narrowly circumscribed by the four subclauses. Nonetheless, I think the paragraph raises some important issues of principle.
I'm not familiar with any other instance where this obligation exists at what might be called a constitutional level. It occurs to me, off the top of my head -- which is always a dangerous place for me to find any ideas -- that there are places within the constitution of Canada where the federal government exercises authority. Then the effect is to displace provincial legislation, because of the operation of the rules of paramountcy. As a general observation, I can't think of any obligation on the part of Canada to consult with British Columbia before Canada takes command of a particular field of jurisdiction.
I may be wrong; there certainly may be instances where that is not so. But the notion that a party which has, arguably, paramountcy is obliged, as a condition precedent to the exercise of that, to consult with the party whose interests are being affected -- with the level of government whose interests are being affected -- strikes me as being novel. Now, I may be wrong, and there may be well-established instances. There may in fact be a principle of constitutional law that I've just forgotten, which says that the federal government is obliged to consult with the provincial government before it overrides provincial laws.
I'm going to leave that point with the Attorney General and add an additional point. Another constitutional term that enters the fray here is the idea of parliamentary sovereignty and the fact that we in this Legislature are sovereign within the areas of jurisdiction that are assigned to the province under the constitution of Canada. From one perspective, this paragraph might be viewed as a fetter on that sovereignty. If the Attorney General agrees, I'm sure he'll say so; and if he disagrees, I'm sure he'll explain why.
Hon. U. Dosanjh: We disagree. I believe that's one of the issues that is being argued, directly or indirectly, before the courts.
G. Plant: I take it that the fact that the issue is being argued is regarded by the Attorney General as a reason not to explain the provincial approach to this at this point.
Hon. U. Dosanjh: We disagree that this is a fetter upon our jurisdiction. It obviously imposes an obligation which has been voluntarily entered into. Under very narrow circumstances that obligation arises. I think that under the circumstances that's appropriate, but it is not a fetter upon our jurisdiction.
G. Plant: Just for comparison purposes, can the Attorney General list off the first half-dozen or so other places in the law -- the first half-dozen examples that occur to him -- where the province has constitutionally agreed that it will consult with a body before enacting legislation?
Hon. U. Dosanjh: We are dealing with the treaty that we've negotiated after years of discussions. As to whether or not those areas exist, the hon. member can do the research as well as I can.
G. Plant: When the number rises above zero, I'll be sure to give the minister a call.
I want to move forward to paragraph 31, although some of my colleagues may have more questions about paragraph 30. Paragraph 31 fleshes out the possible dimensions of consultation. It reads: "Consultations under paragraph 30 may include: (a) the nature and purpose of the proposed amendment to the provincial law
Hon. U. Dosanjh: The latter.
G. Plant: To give the Attorney General the opportunity I'm sure he wants
Hon. U. Dosanjh: Correct.
K. Krueger: If the Nisga'a were to write a Nisga'a labour code, how would section 30 apply? Would the government of British Columbia then be obliged to consult with the Nisga'a Lisims government before amending the provincial Labour Code?
Hon. G. Wilson: I think we tried to communicate to this member last time that they can't write a labour code.
K. Krueger: With respect, certainly the Attorney General stated that opinion last night. The Minister of Aboriginal
[ Page 11843 ]Affairs said that section 67 puts a bar of sorts in the way of the Nisga'a writing their own labour law. When we get to 67 -- we can flip to it for a moment now, if you like -- it doesn't refer to section 30, it only refers to paragraphs 64 to 66. There are a host of other sections in this chapter which will, arguably, bear on the Nisga'a's right to create their own labour legislation. We'll be coming up to one of those in paragraph 33, for example. Certainly Chief Manny Jules of the Kamloops Indian band would argue that labour law falls within aboriginal government and aboriginal culture. Referring back, for example, to paragraph 27, we don't see labour included in the list of issues with regard to which the Nisga'a are obliged to even give notice to Canada and British Columbia of their intended exercise of authority.
I submit to the Minister of Aboriginal Affairs that it could be argued that sections 1, 4, 5, 6, 7, 8, 9 -- with subsections (b), (c) and (d) -- 27, 30 -- this one -- 33, 34, 35, 41, 43, 47 to 49, 53(a), 55, 59 to 61, 63, 126, 127 and 128 all bear on the Nisga'a's right to write labour legislation. If the minister would just allow for a moment -- even if he has to imagine it -- that the Nisga'a, under the provisions of this treaty, will have the right to create their own labour code, would he then explain how section 30 will be administered?
Hon. G. Wilson: I hope the members opposite will take us up on our offer to take some extended hours into the evenings, if this is the level of questioning they're coming forward with.
They do not have the power, and 67 says that for greater certainty they do not have the power. They will not have the power to put in place a labour code, no matter what the member opposite may think or like to argue.
K. Krueger: I would again point out to the minister that section 67 pertains only to paragraphs 64 to 66 -- none of the ones I just listed.
Hon. G. Wilson: The reason I didn't go back through the list of sections is because they are irrelevant to the question. They do not have the power; and for greater certainty, 67 puts an even further restriction on it.
K. Krueger: Would the minister then identify to me the part of this document, other than section 67, which denies the Nisga'a the power to write labour legislation? Last evening the Attorney General was only able to identify section 67.
Hon. U. Dosanjh: I thought we understood the premise of this discussion and of the treaty: the Nisga'a would have the powers they have been granted by agreement of the three parties. If there is no specific, positive power agreed upon with respect to labour issues, they don't have the power. As my colleague the hon. Minister of Aboriginal Affairs has said, for greater certainty and comfort, one can look to section 67, which is a kind of bar to that kind of power. You have to have the power to really need a bar, but they don't have the power.
K. Krueger: How, then, would the Attorney General respond to Chief Manny Jules -- and presumably many other chiefs -- who would argue that whether or not they specifically find a power referred to as labour in this treaty, they view culture as a category that includes labour? Chief Jules will tell the Attorney General, for example -- if he cares to ask -- that it's a matter of great concern to the Kamloops Indian band and the Shuswaps in general that strikes not occur on their reserves and that they have a labour code that prohibits strikes, because for generations it would create problems in their community and with their people.
They very much regard labour issues as cultural issues. Whether or not the treaty in the English language has referred to labour, Chief Jules feels that labour issues are cultural issues. Paragraph 33 and many others deal with the Nisga'a's right to enact legislation bearing on culture.
Hon. U. Dosanjh: I think that's why, for all of the reasons that the member is raising this issue, it's important to enter into modern treaties throughout British Columbia. I would urge the members opposite to pass this treaty so that we can move on to do some more.
K. Krueger: With respect, this treaty is going to create problems for people who choose to be represented by unions or people who work on Nisga'a lands. Of course, it's not just self-government we're talking about, although the government tends to refer to this as self-government. It's government of people who live and work on Nisga'a lands.
It's not clear at all in this treaty how the B.C. Labour Code will apply to Nisga'a territory or to people living or working on Nisga'a lands. Where does the treaty provide any certainty at all on that question? This may be the first modern-day treaty, as the Attorney General refers to it. We're identifying many areas where this treaty is deficient, and this, I submit, is another one.
Hon. U. Dosanjh: I would refer the hon. member to "General Provisions," paragraph 13, to give him further satisfaction on the issues that he raises. It says -- and I think I said this yesterday as well: "Federal and provincial laws apply to the Nisga'a Nation, Nisga'a Villages, Nisga'a Institutions, Nisga'a Corporations, Nisga'a citizens, Nisga'a Lands and Nisga'a Fee Simple Lands." Then it has some qualifications. I think it's important to remember that those laws apply, unless this treaty says to the contrary.
K. Krueger: Assuming that the term "Nisga'a public institution" could include a Nisga'a labour relations board, looking ahead to paragraph 36, we see that Nisga'a law will prevail to the extent of any inconsistency or conflict with federal or provincial law. Again, it seems to me that the general provision that the Attorney General just quoted isn't helpful at all on these questions.
Hon. G. Wilson: There are many very valid issues that need to be debated in this committee stage. The government has said that after the 22nd of this month, we intend to get on with other very pressing business in British Columbia. We have extended an offer to the members opposite that if they would like to have some extended evening hours to deal with those legitimate issues, we're ready to do so.
Frankly, I find it incredible that we would waste any further time on the speculations of the member for Kamloops-North Thompson on the implementation of a labour code, having been told repeatedly that it cannot happen. Regardless
[ Page 11844 ]of the imagination -- creative as it might be -- of the member for Kamloops-North Thompson, it isn't even in the cards. Now, let's talk about something that's legitimate.
G. Plant: I guess I'm one of those lucky British Columbians
While acknowledging that there is a position on the part of the government with respect to the application of the Labour Code, I'm not intending to pursue the issue more than just one further observation. I point out that, first of all, paragraph 13 of the general provisions chapter actually needs to be read entirely before you get the comfort that the government wants to get from it. Obviously, if there's a conflict or inconsistency between the agreement and the provisions of any federal or provincial law, this agreement prevails. There are a whole host of other rules about paramountcy and conflict and all of that, and we'll see in the fullness of time how they work out and the kinds of arguments that people will make. Some of those arguments, frankly, are going to look like arguments that everyone in this chamber would probably scoff at as being beyond the pale. Other arguments might actually have quite a significant patina of reasonableness about them.
Somewhere between those two points, for example, would be the argument that the power conferred upon Nisga'a Lisims government in paragraph 34(b) to make laws in respect of the remuneration of employees of Nisga'a institutions is as wide-open a door to making a labour code or some kind of employment standards law as you might want to think. On the other hand, others may think that's not a very good argument at all. A lot of people think that the whole issue of how they're paid is pretty closely tied to the conditions of work and that those things may get argued.
I have to say, when I say that, that I guess I've sat in my office in my previous life as a lawyer and seen all those kinds of arguments. And I think it's actually legitimate to pursue some of those issues as we go through this, because that's the way we do test the extent of the government's efforts on behalf of the people of B.C. to ensure that there is some certainty here. We're all, I guess, at the mercy of the language that is used in the document.
I've asked all the questions I need to ask about 30 and 31, which takes us to the broad subject of legislative jurisdiction and authority. I expect that as we go through this, there may be questions that come from particular critics who have particular responsibility for the areas that are covered here.
But dealing first with the general provisions, there's a lot of disagreement that I think is intended to serve the role of providing further assurances and perhaps to make clear things that might not otherwise be as clear. And sometimes I'm not sure whether we're in one of those clauses or whether we're in a clause that's intended to do something really substantive. Paragraph 33 says that Nisga'a Lisims government and Nisga'a village governments, respectively, have the principal authority in respect of certain subject matters. What is the relationship between that provision and the specific grants of lawmaking power, for example, that follow after it?
Hon. G. Wilson: This is really just a generalization of what is fleshed out in the specifics; beyond that, there is no relationship.
G. Plant: The statement that the Nisga'a government and Nisga'a village governments have principal authority suggests that somebody else might have secondary or less-than-principal authority -- that is, it tends to suggest the relationship. I take it that the relationships contemplated here are the relationships, on the one hand, between the Nisga'a government institutions and the lawmaking authority of the province or the federal government that is expressly referred to and dealt with in the specific provisions that follow, and that nothing in paragraph 33 is intended to really alter what the specific clauses say about the relationships that exist in respect of those particular subject matters.
Hon. G. Wilson: Yes, that is correct.
G. Plant: We've talked about the Nisga'a constitution. Paragraph 34 is a grant of lawmaking power, if you will, to the Nisga'a Lisims government "in respect of the administration, management and operation of Nisga'a Government," and then there's a bunch of detailed aspects to that. I take it that the authority for the Nisga'a Lisims government to make laws in respect of the administration of the Nisga'a government finds its home here and, as to the Nisga'a village government, in paragraph 35. The constitution and the rules around what's to be in the constitution act as constraints around the content of those laws. Is that a relatively fair statement of the way the thing works?
Hon. G. Wilson: Yes, I think that's a fair summary.
G. Plant: We have talked about the idea of urban locals and Nisga'a villages and the changes that can be made to either the name, the identity or even the existence of Nisga'a villages and urban locals. All of the powers of the Nisga'a Lisims government in relation to Nisga'a villages on Nisga'a lands and Nisga'a urban locals flow from paragraph 37. Is that correct?
Hon. G. Wilson: The answer is yes.
G. Plant: One of the challenges that I have certainly faced in trying to read this agreement and make sense of it is to follow the map of paramountcy between the agreement itself and Nisga'a law and other entities that are implicated in that, which may be the federal or provincial government and others.
Paragraph 32 says that if there's "an inconsistency or conflict between this Agreement and the provisions of any Nisga'a law, this Agreement prevails." Paragraph 36 says that if there's "an inconsistency or conflict between a Nisga'a law
I'm not going to impose upon the minister to follow through every single chain of paramountcy that exists in this agreement, and there are a number of them. I should say that we are bound to go through a few of them. But I do want to ask the minister: what is the way, in plain language terms, that
[ Page 11845 ]these two clauses work in the context of the lawmaking authority "in respect of the administration, management and operation of Nisga'a Government"?
Hon. G. Wilson: The distinction is that 32 parallels section 13 of the "General Provisions," whereas 34 and 35 obviously tie
G. Plant: I suppose another way of putting that is to say that if there's a conflict between a Nisga'a law, under paragraphs 34 and 35, and some federal or provincial law, the Nisga'a law prevails. But the agreement would trump Nisga'a law if there were a conflict there. If that's correct, it would essentially support the view that the agreement is the home of all homes. I mean, it's the source of all of this. When all else fails, look at the agreement.
Hon. G. Wilson: Yes, that's generally what's intended.
G. Plant: Let me work through one scenario here, and I ask the minister to help me. I'm going to go back to paragraph 34(b) again. Just for fun -- I don't want anyone to accuse me of never trying to have any fun -- let's assume that in making laws under paragraph 34(b), the Nisga'a government seeks to make laws that impose terms and conditions of employment contracts that apply to employees of Nisga'a institutions and that alter the common law with respect to the requirement to give reasonable notice in the event of dismissal.
I understand that the minister may say: "Well, that kind of an example isn't a good one, because they couldn't make that law." If we could forgive that criticism for a moment, am I right that the relationship between 34(b) and 36 would, in that case, be that Nisga'a law would prevail to the extent of the inconsistency or conflict between, say, the common law with respect to contracts of employment and the Nisga'a law with respect to specific contracts of employment for employees of Nisga'a institutions?
Hon. G. Wilson: Well, our view is that they would not have the ability to do that, because it would be labour law. In the event that they did, that would be covered off under section 53 of the general provisions with respect to incidental impact, which is the reason they would not be able to do it.
G. Plant: So paragraph 53 is what happens if a Nisga'a law has an incidental impact on a subject matter in respect of which Nisga'a government does not have jurisdiction to make laws. And then it goes on to speak about resolving inconsistencies. The answer to my question in terms of explaining the flow chart, if you will, turned on a characterization of the nature of the Nisga'a law in question. It was determined, in considering the answer to my question, that it was the sort of law that fell within paragraph 53, so the rules that apply there apply to it. Is that correct?
Hon. G. Wilson: I think that to clarify, in the first instance we would deem that they have no authority. If it gets beyond that, then 53 applies with respect to incidental impact.
G. Plant: For further clarification, the province's first response to my hypothesis is to say that a Nisga'a law that purported to deal with contracts of employment for employees of Nisga'a public institutions in a way that altered the common law with respect to reasonable notice for dismissal is a law that lies outside the power of Nisga'a government to make. That's the first answer.
If that's wrong, then the second alternative answer is that it would be the kind of law that paragraph 53 is all about. Is that a fair restatement of what the minister said?
Hon. G. Wilson: Yes, that's a fair restatement.
G. Plant: To take a second hypothetical example, the Nisga'a government makes a law that deals with the remuneration of the employees and appointees of Nisga'a institutions. Well, I'm not sure how to
I guess the question would be whether the government has in mind examples of Nisga'a laws that could conceivably be inconsistent with federal or provincial laws within the general scope of paragraphs 34 and 35. Maybe I could ask the minister if there are examples of potential Nisga'a laws that could raise the issue of a conflict and then ask him to explain how it would be resolved.
Hon. G. Wilson: We're having a hard time giving a specific answer, because it's a highly speculative question. There may be some variation or differences, but the scenario painted by the member opposite is really highly speculative, and it's difficult to give a concrete answer.
G. Plant: Well, it may be highly speculative, but it's provided for in the agreement, so I think it's actually worth attempting to see how the thing is intended to work. It may be that the government's answer is to say that as a matter of public policy, this issue has been dealt with in the following way. Here is the scope of Nisga'a lawmaking authority in relation to the administration of its institutions. And if anyone were to ever come along and argue that there were some conflict between those laws and the provincial or federal laws in relation to such institutions, from the province's perspective, the Nisga'a law should trump. It's good public policy, recognizing the objectives of the agreement, to ensure that Nisga'a government has that degree of autonomy and security and that they're not going to be having to engage in dispute resolution around whether or not their laws around public administration within the scope of 34 and 35 are different from provincial or federal laws. The approach taken here is to say: "Well, that issue, frankly, just isn't going to arise, because the Nisga'a should be able to make their own laws around this, and their laws should prevail -- and that's the end of it."
[E. Gillespie in the chair.]
Hon. G. Wilson: Well, that was what was agreed to in general, and in general terms, that's what the Crown believes is appropriate.
[ Page 11846 ]
M. de Jong: Dealing now with sections 39 and 40, "Nisga'a Citizenship," I think the issue that the drafters were confronted with was how to fit the notion of Nisga'a citizenship and all of the rights and duties that that implies within the broader concept of Canadian citizenship, as we know that term. Maybe I can begin here, because this is one of those sections that gives rise to concerns -- some of which are unwarranted; maybe many of which are unwarranted -- because of some of the terminology that's used. Was there any thought given to speaking, instead, of Nisga'a membership rather than citizenship? For reasons we'll explore here briefly, that term carries with it meanings in terms of international law, in terms of what it means to people from a practical point of view. Why use the word "citizenship"?
Hon. U. Dosanjh: I don't believe that other terms were discussed at length, or at all, because the Nisga'a indicated that this was an appropriate term. It was desirable for them, it did not detract from the concept or the powers and privileges of Canadian citizenship, and it was felt appropriate by the parties to use the term.
M. de Jong: And I think that's what the two sections are about -- what the Attorney General said. It's to try and ensure that the notion of Nisga'a citizenship doesn't detract from the broader concept of Canadian citizenship. I guess I just want to explore briefly whether the provisions achieve that objective.
One of the things that I say to people is that as a Canadian citizen, one of the fundamental rights you have is to be in Canada. If you show up at the border as a Canadian citizen, you can be arrested and you can be detained, but you can't be turned away. That is a fundamental right you have as a Canadian: to be in this country. Does that same concept hold true for a Nisga'a citizen, within the meaning of this treaty? Does a Nisga'a citizen have the right to be on Nisga'a land?
Hon. U. Dosanjh: The answer to that simple question is yes, and it's in paragraph 10 of chapter 2 of the constitution. But coupled with that, one must consider that that does not confer or deny the rights of entry into Canada. If you are not a Canadian citizen and somehow you happen to be a Nisga'a citizen, that will not give you the right to come into Canada. And if you are in Canada illegally, you may have been declared a Nisga'a citizen, but you will be deported.
M. de Jong: So to follow through
Hon. U. Dosanjh: We've done this before.
M. de Jong: Well, we have done it once before -- not with respect to the treaty itself. I think it was with respect to
M. de Jong: Well, the agreement-in-principle is the discussion that I think we had in estimates with the minister.
M. de Jong: Well, my memory is apparently much worse than the Attorney General's, so we will just take a moment to help refresh my memory.
We have an individual who claims rights as a Nisga'a citizen, who is on Nisga'a lands and claims, pursuant to the provisions of this treaty and the Nisga'a constitution, the right to remain on those Nisga'a lands. Explain to me -- through you, hon. Chair, to the Attorney General -- the jurisdiction or the authority that exists for Canadian law enforcement officials to go onto Nisga'a lands to remove an individual who Canadian authorities say no longer has the right to be in Canada and to be in British Columbia.
Hon. U. Dosanjh: Hon. Chair, that would be, I understand, the chapter entitled "Access," paragraph 15 -- access to law enforcement authorities to enforce the law.
M. de Jong: If that provides the access -- understood. The authority, however, to act on the desire to have that person extradited -- I take it that the Attorney General would say -- exists within sections 39 and 40. Yet I see an inconsistency between the rights that are granted to a Nisga'a citizen, pursuant to the Nisga'a constitution and this treaty, and what is set out in 39(a) and 39(b), and no authority for the proposition that 39(a) takes precedence.
Hon. U. Dosanjh: One has to read 39 and 40 with paragraph 15 of the access chapter and paragraph 13 of the general provisions. Then one gets the full picture of the federal and provincial laws applying, access being available -- the right to enforce those laws.
M. de Jong: When I read paragraph 40 in particular, I see the paramountcy provisions as they apply to Nisga'a law and its authority with respect to the citizenship provisions. I have heard the argument made -- and will make it for the Attorney General to respond to today -- that in the scenario we've described, paramount authority over the rights of citizenship could operate in a way that would allow for that Nisga'a citizen to say: "No, I'm staying on Nisga'a lands. That is a right that takes precedence over the federal authority to have me removed."
Hon. U. Dosanjh: Not true.
M. de Jong: I think my colleague from Richmond has some questions relating to the sections on culture and language.
L. Reid: I want to put some comment on the record this afternoon. When we reach the sections regarding adoption, foster families and all of those issues, I want to be absolutely clear that the best interests of the child will always be the paramount consideration. That has not been the case in a number of cases that this ministry and this Attorney will certainly be familiar with. That has not given me comfort that this particular agreement will somehow be different for children in British Columbia.
So if I could ask the Attorney General, in the absence of the minister, to comment on the commitment of this govern
[ Page 11847 ]ment in terms of language and culture as a defining factor in the placement of a child in the best interests of a child, that will certainly give me some comfort as we lead into sections that are more specific to that reference.
Hon. U. Dosanjh: I think that one has to look at paragraphs 89, 90 and 96 of this chapter. Paragraph 89 talks about the government's ability to "make laws in respect of child and family services
I think it's important to look at all of these issues or sections together. When one does that, then it becomes pretty clear -- crystal-clear -- that the general law applying to children with respect to these kinds of issues applies in the Nisga'a treaty as well.
L. Reid: Frankly, it's not clear that the implementation will match the language. There is tremendous controversy around the sections which talk about "those laws include standards comparable to provincial standards," when in fact there is no known appeal process. I believe that this document will remove children from access to the Child and Family Review Board, to the appeal process, to the children's commissioner -- to all of those things. If the Attorney has a different interpretation of those subsequent sections, I can rest a bit easier in dealing with the "Culture and Language" section.
Indeed, to suggest that simple statement, "There shall be standards," alone doesn't give me comfort. That's because I think the standard that we will come to is very similar to where we are today around Spallumcheen, which certainly does not allow any kind of outside appeal process, outside recourse, even for those children who might wish to have a different delivery system in place for them. There is no access to any other intervention -- absolutely none.
The reason, again, that I am commenting at section 41 under "Culture and Language" is my fear that when we debate through sections 89, 90 and 91, those indeed will be the only determining criteria in terms of placement and adoption. That has certainly been where this government was in the Murphy case, as an example. Culture and language were the deciding factors that allowed the ministry to engage in a lengthy legal battle with that family. They were the only criteria that launched the ministry into that battle. So for the Attorney to somehow suggest today that because it states standards in here, that, in effect, won't happen
Hon. U. Dosanjh: I'm somewhat puzzled by the hon. member's relating of sections 41, 42 and 43 to the sections with respect to child apprehensions or adoptions and the like. It's important to recognize that these are general sections that deal with the issues of culture and language.
In terms of the other sections, when we come to those I'd be happy to explain to the hon. member that if those standards are not comparable to our standards, their laws are invalid and ours would apply. And if there aren't appropriate mechanisms for review and appeal, obviously they would not be comparable.
I go back to the original argument that I made to the other colleagues on the opposite side. They have struggled to have this treaty made after such a long time. They're not doing it to ensure that they don't look after their children. We haven't done such a great job of looking after their children.
L. Reid: I too look forward to having a very specific debate with the Attorney on this question at future sections. But in terms of the relationship of section 41, "Culture and Language," to future discussions
We are somehow suggesting that comparable standards will be crafted and that comparable delivery mechanisms will be put in place, so that the same avenues remain open to them. I remain unconvinced. I speak today only out of concern for aboriginal children. I think the Attorney is correct: we have not done all that we could have. But before I can vote and move forward on this section, I have to know that somehow this is superior to what we have today.
What I see is that the door will be left open for culture and language to be the only defining criteria for placement and that the best interests of the child will somehow fall below that. That is the speculation in the community today. It's the fear of many people who work in the Ministry of Social Services and deal directly with aboriginal children. They need to believe -- and we're looking to you to convince us -- that somehow this will be a better scenario for young people in this province.
Hon. U. Dosanjh: For the hon. member to jump from 41, 42, 43
The section dealing with adoption and child and family services is very clear, and 96, if I may read, says:
"Nisga'a Lisims Government may make laws in respect of the adoption of Nisga'a children, provided that those laws:You couldn't have language stronger than that. That proviso implies that if they don't do that, the law would be invalid.
"a. expressly provide that the best interests of the child be the paramount consideration in determining whether an adoption will take place; and
"b. require Nisga'a Lisims Government to provide British Columbia and Canada with records of all adoptions occurring under Nisga'a laws."
M. de Jong: Let's have a look at this section from, well, not really a different perspective, because I think this is what my colleague is also referring to. This section, which bestows
[ Page 11848 ]paramount authority on Nisga'a government with respect to culture and language
M. de Jong: The Attorney General wants me to stop because he gets the point, and I'm almost inclined to
Hon. U. Dosanjh: It's a problem amongst lawyers.
M. de Jong: A problem amongst lawyers, he says.
But I think he does understand the point. What I'm looking for, and what my colleague from Richmond is looking for with respect to the specific issue that she is dealing with, is: how do we acquire some degree of certainty and some degree of comfort that the term "culture" won't be steadily expanded -- that definition -- to capture all sorts of things that the government may not have contemplated when it agreed to bestow paramount authority on the Nisga'a government by virtue of these sections?
Hon. U. Dosanjh: I think the standard that would apply to the interpretation and understanding of those laws that may be made by the Nisga'a would be: what does this law relate to? What is it, in pith and substance? That's the general standard and test that's applied in the courts in Canada. If it does relate, in pith and substance, to culture, so be it. If it really relates to something else and culture is being used as a tool to achieve an objective which is otherwise both undesirable and inappropriate, that law would be struck down. It would be invalid.
M. de Jong: If we go back to the example that my colleague from Richmond was referring to, we have heard very genuine arguments -- and I say this sincerely -- from aboriginal groups that the notion of child custody goes to the heart of aboriginal culture. I don't think it would be a disingenuous argument on their part to say that in developing a test for determining the custody of a child that is slightly different from the one that exists in British Columbia now but related back to the cultural component
M. de Jong: He says: "I hope they would." And yet we have heard that argument made. It's one example. It can be applied in a whole host of different areas.
Hon. U. Dosanjh: The test would still remain the best interests of the child, in determining custody. If culture is relevant to that consideration, so be it. But culture cannot be the exclusive determinant of who gets custody, who gets to adopt the child and whether or not the adoption is approved or rejected. I think it's important for us to recognize that our culture -- British Columbia culture, the mainstream culture -- plays a role in what the courts do with adoptions in the courts when we appear to have adoptions done. Similarly, culture might play a role in determining what the best interests of the child may be. If that is the most important and exclusive consideration in determining the best interests of the child, that would not meet the test that's implicit in the treaty.
L. Reid: I want to go back to a comment I made earlier, in terms of needing some comfort around how this might be better for the Attorney in terms of where we are today as a province. We'll use the Murphy case as an example -- and my request for assurance that this process would somehow be improved. For the Attorney's benefit, this is a family that attempted, over a period of six years, to adopt a native child. They lost their home, lost their business -- enormous legal fees. The one determining factor in place on behalf of the ministry was culture. At no point was that decision supported -- not by the Child and Family Review Board, not by the children's commissioner. It was not supported.
The Attorney has commented that yes, there are other avenues to pursue, but when it's the courts, the cost is debilitating for British Columbians. These individuals lost everything for a decision that, frankly, was wrong and was proven to be wrong two or three times. Given that that's the status quo today, I need to believe that this will somehow produce a better product -- less ambiguity, less confusion, less cost, less expense. From what the Attorney has said, I'm not convinced that the best interests of the child will be paramount in this discussion.
I think that in terms of my colleague from Matsqui's comments, the definition of culture will only mushroom to include absolutely everything and, indeed, will deny children access to avenues that are currently open to other children in this province, whether it be access to the Child and Family Review Board, to the children's commissioner, to the children's advocate
Again, I'm not convinced, from what the Attorney has said, that this can be a far-reaching discussion. I'm not clear that the ministry is doing anything but distancing itself from accountability on these questions. But in fact this is a system that will very much differ depending on nationality. The avenues open to non-aboriginal children will be dramatically different than those open to aboriginal children; that is my fear. So if the Attorney could comment.
Hon. U. Dosanjh: I think we've gone over this for some time. We just have a different view and different expectations. I can't afford, either legally or otherwise, to re-argue a case that's been before the courts for a long time. Difficult and hard cases sometimes lead one to difficult and sometimes inappropriate conclusions. I can't argue with the conclusions that the hon. member draws. These are very difficult issues; they're heartrending issues.
[ Page 11849 ]But these people negotiated a treaty in good faith with us. They want to make sure that they take care of their children better than we've taken care of their children for them. I would much better trust them, then, after looking at our own record over the last many decades. It leads me to believe that we are perhaps in for better times.
L. Reid: The Attorney may have seen today the report that was released by the children's commissioner, written by young people in the province. Nowhere did it say that they were looking for less access to the avenues open to British Columbia's young people. It listed off every possible phone number for every possible service. The report was in fact written by four aboriginal young people. They are not prepared to give up that level of access. Will the Attorney confirm that indeed, once this moves forward, they will no longer have access to any of the resources they discuss in the report released today?
Hon. U. Dosanjh: I think it is really asking one too much to look into the crystal ball and say whether Nisga'a are going to make appropriate laws two years from now if they draw down and exercise some of these powers. I think, suffice it to say, that the facilities of the children's commissioner and child advocate would be accessible to the Nisga'a if they so decide to use them. If they don't, they have to establish comparable standards to deal with those issues.
[H. Giesbrecht in the chair.]
L. Reid: Then perhaps just some clarification on who decides to use
Hon. U. Dosanjh: Again, we're really into an abstract discussion. At some point, if someone believes that the Nisga'a have not put in place comparable standards and laws, that person can rely on this treaty, section 3 of the bill, and take the matter to court and force the Nisga'a to have those standards in place. I think the avenues are open. But for me to guarantee that there would be XYZ clauses or ABC clauses in the laws they pass
L. Reid: I thank the Attorney General, but that was not the question. The question was whether or not a young Nisga'a person today could seek service outside of this agreement. The Attorney General's response was that they could pursue it through the courts. Today, a ten-year-old, a 12-year-old or a 14-year-old can pick up the telephone and call the children's commissioner or the child advocate.
Hon. U. Dosanjh: I'm talking about this treaty.
L. Reid: So am I.
Hon. U. Dosanjh: We are talking about today
L. Reid: We are talking directly about this
The Chair: Through the Chair, please.
L. Reid: Thank you, hon. Chair -- and the same advice to the Attorney General, I'm sure.
The question was: can young people access
Hon. U. Dosanjh: They may or may not. If the child may not, the Nisga'a would have to have comparable institutions in place; otherwise, they would have to provide access to the children's commissioner and the child advocate. If they can't set up comparable standards, they're not doing their job.
L. Reid: Who determines comparable standards?
Hon. U. Dosanjh: The answer to your previous question gave you the answer as to who determines: democratically elected governments. We look at those issues, and if we have some powers, we pull back. At some point, section 5 of the act can come into play, and somebody could take the whole Nisga'a government to court and say: "You're deficient."
I think those are the avenues available to British Columbians outside of Nisga'a lands. You talk to the opposition party, your MLAs and MPs. If that doesn't work and the law doesn't change, you go to court and get the court to get a declaration. Why is it that the hon. member thinks that we should have something different for Nisga'a?
L. Reid: I would only invite the Attorney General to read the report that was released today and then check Hansard. What he is saying at this juncture is dramatically different than what young aboriginal children in this province today believe they need. It's an absolutely valid comment. What I hear the Attorney General suggesting is that Nisga'a young people in this province will indeed have limited access. I leave that for his consideration. What I heard this individual suggest is that new programs, avenues and vehicles will be created that, frankly, deny children access to the existing vehicles. Yes or no?
Hon. U. Dosanjh: I have disagreed with the hon. member's assertion before and indicated what the alternatives would be. I simply restate that assertion.
L. Stephens: I'm happy to join the debate. We've moving to section 44: "Nisga'a Property in Nisga'a Lands."
As it stands now, upon marriage breakdown there's no equal division of property recognized under the Indian Act. I'm sure the Attorney General is familiar with what has transpired because of that. What is happening on the reserves is that the administration of the band councils has discriminated in many ways in regard to housing and other services to aboriginal women. What I would like to ask the Attorney
[ Page 11850 ]General is: would the Attorney General indicate, under section 44(c)(ii), whether or not this particular item here that says "the disposition of an estate or interest of the Nisga'a Nation, a Nisga'a Village or a Nisga'a Corporation, in any parcel of Nisga'a Lands, including
Hon. U. Dosanjh: This section relates to the fact that they have fee simple lands which they can create some different estates from -- fee tail leases and the like. This has nothing to do with a division of matrimonial property upon divorce or separation. British Columbia law applies -- the Family Relations Act -- and the Divorce Act, which is federal legislation. All of that applies, and all of what that entails applies, with the exception of some areas such as custody issues, which are specifically provided for.
L. Stephens: Well, if we go down to 46, it does say: "
Hon. U. Dosanjh: What this simply says is that if the Nisga'a create a lease, they can't say it's a mortgage. It's nothing to do with the issue the hon. member is actually relating it to.
L. Stephens: I was hoping that in fact this section did talk about property rights and that this was the spot where aboriginal women could find some comfort that in fact the discrimination they have been subjected to for 100 years would now be coming to an end under this treaty. So I would like to ask the Attorney General, then: where does it say in this treaty that aboriginal women will have the protection for property rights on marriage breakdown? Is it simply because the Indian Act will no longer be in force for the Nisga'a nation?
Hon. U. Dosanjh: I think that I've referred to paragraph 13 of the general provisions actually quite often now in this chamber. That's that federal and provincial laws apply to the Nisga'a nation, and laws relating to division of property, divorce and the like are those laws that are referred to in 13. These lands would no longer be reserves; therefore the Indian Act shall not apply. In addition to that, if there is any doubt in the hon. member's mind, it is the Ministry of Attorney General's view that, to the exercise of Nisga'a authority, the Charter of Rights and Freedoms applies. And I think that all of that put together should give you sufficient comfort.
L. Stephens: I wish it did, but unfortunately, it really doesn't. Perhaps the Attorney General could comment on this. There is a bill before the federal Parliament, C-49, that deals with land codes -- aboriginal bands developing land codes and how they relate to property on lands. There are only five bands in British Columbia that these land codes are going to apply to, and Nisga'a isn't one of them.
I can just tell the Attorney General that after our debate and discussion yesterday, I received a number of faxes from aboriginal women who happened to be watching, and every single one of them spoke about this issue. This is probably the most important issue for aboriginal women. They need to have a little bit more comfort than just the Charter. We've been living under the Charter for a number of years, and aboriginal women have always had to go to the courts.
L. Stephens: I know the Indian Act is not going to apply. I hear the Attorney General saying that, and I know that gives him comfort as a legislator and as a lawyer. But the fact that a lot of these aboriginal women have had to go through a lot of difficulty to access their rights
If that's the Attorney General's answer -- that it is the Charter that they have comfort with, that the Indian Act no longer applies and that the Nisga'a agreement is what the laws of the land, so to speak, will be generated under -- then that's the answer that they're going to have to take. We will see what happens from there and whether or not the bands, in fact, do make sure that aboriginal women's interests are looked after. But I can tell the Attorney General that I'm sure he will be hearing if that's not the case. I'll make sure that the Attorney General hears that those things aren't happening.
An Hon. Member: I told you so.
L. Stephens: Yes, I told you so.
Another big problem that women have faced is the issue of membership. Even though under the Charter
Hon. U. Dosanjh: Chapter 20 is the chapter dealing with enrolment and the like. I think, first of all, that removing the shackles of the Indian Act would be a breath of fresh air for the Nisga'a. It would be freedom. This treaty better and more appropriately defines the powers and obligations that they will have. It ensures that there would be democratically elected governments. It ensures that they would have to go through a certain process to pass laws. It ensures in certain areas that their laws would be invalid if they don't meet certain standards.
On top of that, I can tell you -- you all remember -- that it is the Ministry of Attorney General's view that the Charter of Rights and Freedoms applies to any exercise of Nisga'a authority under this treaty. I think that when you put all of
[ Page 11851 ]that together, that's the best package of guarantees that one can put together on this issue. I think it is appropriate that that's the assurance that we go with. At some point, if it doesn't work -- because there are no guarantees in life
L. Stephens: That may very well be, sooner than people may think.
I am interested in one of the remarks the Attorney General made, and I don't know whether it was a slip of the tongue, or whatever. He was talking about Lisims government and that there would be an opposition to that government. I'm sure that that wasn't what he was meaning in terms of a federal parliament and a provincial parliament. The fact is that there isn't an official opposition to Lisims government, other than elections. In between those elections there is no body that can hold them to account; there is no body to do that.
L. Stephens: Yes, there is. The Attorney General says there is no one here either. We object; the official opposition objects.
The issue is: who is going to hold Lisims government to account? The people don't have any say, except at election times. In between those, people are going to have to subsist, as they do now. A lot of people see very little change going to happen simply because we have a treaty. The same process is in place; the same structure is in place. People believe that in fact nothing much is going to change.
What many people, particularly the women, who have been so badly treated by the structure and the process that is now in place in regards to the transfer of the administration of social programs, for instance, that has happened
Aboriginal women need more than just simply: "The laws of Canada and British Columbia will prevail, and the Charter prevails." Past experience has shown them that that is not a protection for them. If that's all the government side has to offer, then we'll make note of that.
Hon. D. Lovick: I appreciate the points made by the member opposite. Let me say, first of all, that I am simply filling in for a few moments while my colleague the Minister of Aboriginal Affairs is engaged in some other matters and the Attorney General has to be absent for a few minutes. With members' indulgence, I will pick up the old load and endeavour to answer their questions.
I do appreciate the points made by the member opposite. Certainly, as one who has been involved in some small way in the fight for equality between women and men in this country, I appreciate the validity of the case she offers as far as what the legal system has done for women. But it makes the point, I think, that the legal system by itself will not solve all the problems. Discrimination against women and activities that are, quite frankly, antipathetic to the legitimate interests of women are part of a social fabric, and to change that requires much more than passing laws or constitutions or treaties.
This treaty, for all intents and purposes, is silent on those issues. It certainly doesn't exacerbate the problem -- far from it. Indeed, it's probably fairer to say the opposite. But it is effectively silent.
However, having said that, I think the reality of the political structure and the way Lisims and village governments will work leads me to the clear conclusion that conceivably, within weeks of this government taking shape, there could be two different political parties -- one predominantly led by women, for example. There is nothing to prevent that. The Nisga'a people may well say: "Well, look. We no longer feel that the people who we have elected to this government are doing an adequate job to protect our interests." Accordingly, then, there could be a group elected very quickly to say: "We want better. Especially and specifically, we want better for women."
So I hope that's some comfort to the member. But she's quite right that the treaty itself doesn't speak to the issue. She's also absolutely right when she says that our system of laws has certainly not solved the problem of inequalities.
L. Stephens: I want to thank the member opposite, the former Aboriginal Affairs minister, because that was very helpful. Frankly, that's the first time I have heard any discussion around the possibility of there being an elected opposition to a Lisims government. So I will take the minister at his word that in fact the processes that are available -- or will be or possibly will be available -- to demand accountability in all the areas of government endeavour will be there for women as well as others that are affected by these new self-government provisions.
M. de Jong: We're dealing with these sections around "Nisga'a Property in Nisga'a Lands." If we accept for the moment that this represents a treaty and a land claim agreement and that these sections collectively set out some of the rights that the Nisga'a will have with respect to the management of those lands, that will make sense to a lot of people. If there was a power that would be exercised in the broadest possible fashion, it would be the power to manage and determine what is going to happen on lands that have been transferred to the Nisga'a as part of the ultimate settlement.
I can't resist asking this question of the minister: is it the government's view that the authority that vests in Nisga'a government by virtue of these sections is an inherent power?
Hon. D. Lovick: As Yogi Berra said: "It's déjà vu all over again." We had this debate on numerous occasions in my earlier portfolio. I can't answer the question, as the member well knows, because the only answer is essentially that the form of government we have stipulated here is the one that was negotiated. I will leave the academic question of the inherent versus delegated right for scholars to grapple with hereafter.
M. de Jong: Scholars and lawyers in the practice of aboriginal law. But it would have been remiss of me not to
[ Page 11852 ]have at least posed the question as a means of welcoming the minister back, temporarily at least, to the post he formerly occupied.
Are these the provisions -- that is, 44, 45, 46 and 47, I suppose -- by which Nisga'a government is empowered to create the estates in land that would be necessary to transfer portions of their land either to individuals or to corporate entities? Is this where that power derives from?
Hon. D. Lovick: The answer is yes.
M. de Jong: One of the aspects of this treaty that the minister -- in his former capacity -- and I did discuss during the course of the public debate was the notion of collective ownership versus individual ownership. I won't belabour the point. But I think that if we have come to that point in the treaty, it is worth emphasizing the view held by many that notwithstanding the powers that are vested in Nisga'a government by virtue of these sections, one of the flaws of the treaty is the fact that it creates that obstacle between the type of individual ownership of the land that non-aboriginal people in British Columbia enjoy and the type of ownership that will be possible. There will be, I'm sure, a mechanism by which Nisga'a will own portions of Nisga'a land. But it will be different, and it won't be title in the purest sense that the minister and I know it: that we own our homes. For many people, that represents a fundamental flaw in the treaty and the model of the treaty.
[W. Hartley in the chair.]
Hon. D. Lovick: I think the important way to look at this section and, indeed, the whole treaty, is probably as an enabling document. What these sections do is provide Nisga'a the wherewithal to make the kinds of laws that they might choose to put in place in order that they could create something more akin to fee simple property ownership as we understand it. It doesn't do it, but it provides the framework that enables them to do so if they so wish. Accordingly, then, I take issue with the member suggesting this is a flaw. I don't think it is a flaw. I think it is a deliberate design of the treaty.
M. de Jong: Are there provisions anywhere in the treaty
Hon. D. Lovick: I am in the envious position of having a lawyer on each side of me, and they both simultaneously said: "No, no." That's the answer.
M. de Jong: Unless I misunderstand, then, the suggestion seems to be that there are no impediments to a Nisga'a person who, upon acquiring a form of title in Nisga'a lands
Hon. D. Lovick: My apologies for the delay. The question is complex, and the answer more complex, I think.
I refer the member to 44(e), which simply says: "Nisga'a Lisims Government may make laws in respect of
Back to my answer earlier, when I said that the treaty is essentially enabling. Okay, this provides the mechanism for them to make those laws. They could quite conceivably make a law that said: "Nisga'a citizen X could transfer his or her ownership to Nisga'a citizen Y, who could subsequently dispose of that to a non-Nisga'a citizen." That is perfectly allowed. The caveat -- and the reason I didn't leap to answer that instantly -- is that whatever they do is still ultimately going to be subject to Charter rights and the laws of general application and so forth. That's just the cautionary note.
M. de Jong: Well, that's helpful. Do these provisions, then, operate in a way that would allow for the creation of an estate in land that could vest in an individual or corporation, and then that interest in that land could ultimately be transferred to a non-Nisga'a person, without requiring the specific approval of Nisga'a Lisims government?
Hon. D. Lovick: The answer -- I'm going to be very careful how I say this -- is that what the member describes is conceivable. But it is also conceivable that Nisga'a Lisims government may impose restrictions on that kind of thing happening, but in doing so would, of course, be subject to a Charter challenge or something. Do you see my point? In other words, the answer is really yes and no.
Hon. D. Lovick: I'm sorry -- have I not explained that clearly? Okay. I'll let you reflect on it for a moment, then.
M. de Jong: Not to be cute about this, but my impression all along is that some manner of restriction on the ability to transfer title in a portion of Nisga'a lands outside of the Nisga'a family is contemplated. When the minister said candidly some months ago, when we first began to discuss this document, that it enshrines a notion of collective ownership that Nisga'a government will then deal with in the manner that the minister has described
Hon. D. Lovick: I think we're in danger of mixing two issues -- namely, a government issue and an ownership issue. Let me try it this way. The Nisga'a, according to this, have the power to pass certain laws -- laws which conceivably could restrict ownership is the safest way to put it -- subject, again,
[ Page 11853 ]to the Charter. It doesn't, I think, affect land ownership directly -- or it doesn't affect the governance. Now you've got me confused in terms of whether we are coming at this as a governance question or as a land ownership question. Maybe we'd better try it again.
M. de Jong: I'm not sure it would help for me to try and repeat what I said last time, but if the minister wants to take a moment
Hon. D. Lovick: Let me, if I may
If I may simply refer the member to the lands chapter, paragraph 5, which I think is a nice simplified rendition of the conclusion -- namely: "A parcel of Nisga'a Lands does not cease to be Nisga'a Lands as a result of any change in ownership of an estate or interest in that parcel." I think that answers the question that the member poses about the difference between this land and the rest of us and how we own land. He may not like the answer, but that is indeed the answer.
M. de Jong: The purpose of the exercise was to demonstrate that notwithstanding the broad powers that are granted to a Nisga'a government under these provisions, there are contemplated within the provisions of this agreement restrictions on the kind of title that an individual can own that are perhaps not contemplated elsewhere in the province. That might be stating the obvious, and I'll let the minister respond to that before I move on to a couple of other issues.
Hon. D. Lovick: I want, if I may, to refer the member to 44(e) and (f), in which what is contemplated are conditions, restrictions and reservations on rights -- in other words, as opposed to some kind of pure title and the right to do anything one wants with the property. Rather, those other conditions, restrictions and reservations are all retained, in the same way, by the way -- and here's the analogue -- that the provincial Crown will enter into leaseholding or indeed sale arrangements with people but also maintain reservations and conditions on the property that is sold. So the analogy, I think, is perhaps helpful. This isn't that unique, I guess, is the conclusion.
M. de Jong: At the risk of further complicating a complicated issue, let me just try one other thing. When we consider the various types of titles or interests in land that might be created pursuant to these sections, it occurs to me that those interests may be novel insofar as they are not presently known outside Nisga'a lands but that part of the justification on the part of the Nisga'a government in creating that new interest might be -- and this refers back to section 43 -- a cultural argument. An argument centred around culture might be utilized, for example, to restrict the class of persons that could own a particular interest in land. I'm afraid my example is rather vague, there might be restrictions, based on cultural considerations, on one's ability to transfer an interest in land. To the minister's mind, would that represent -- within the ambit of sections 43 and 44 -- a valid consideration on the part of the government purporting to create that interest in Nisga'a lands?
Hon. D. Lovick: I'd refer the member again to 46. The burden of 46 is essentially that Nisga'a can't create a new interest in the land -- a new interest or estate. I think that, in technical terms, probably answers the question directly.
M. de Jong: I'm not sure that it does. I mean, it does if what the minister is saying is that the answer to my original question is no and that that is the authority he relies upon for making that statement. So maybe I'm just asking the minister to confirm what I think I heard him say.
Hon. D. Lovick: The member is quite right to pursue that, Mr. Chairman. And I'm sorry. I really only dealt with the latter part of his question. So back to the question about culture and whether, in the name of culture or under that heading, some kind of restriction could be imposed. The answer to that is that that could well be -- but subject, as we said earlier, to the Charter provisions.
M. de Jong: One more kick at this. Did the minister say earlier
Hon. D. Lovick: If I understand the member's question correctly, the clarification he is requesting has to do with creating new interests or new estates. I would simply stand by the language of section 46, which I think states quite explicitly that no new interests or estates can be created.
Let me read it; that's probably the easiest way: "Nisga'a laws under paragraph 44(c) in respect of estates or interests that are recognized and permitted by federal or provincial laws of general application will be consistent with federal and provincial laws of general application in respect of those estates or interests
M. de Jong: Maybe I read that section differently from the minister. What that says to me is that Nisga'a government has the option of creating interests in land that are known to provincial and federal laws but that if they do -- if they create those interests in land -- they must be consistent with those laws. The section doesn't -- to me, at least -- preclude the possibility of creating an entirely different interest in land. If that is a faulty reading of the section, I'd be happy to hear why that is.
Hon. U. Dosanjh: The Nisga'a could not create any different estates than what exists at law or in common law. They could create estates only known to the law at this time. I think that's what allows you to then understand the section.
M. de Jong: I'll just try one more time with the Attorney General, by reading section 46 out loud: "Nisga'a laws under paragraph 44 (c) in respect of estates or interests that are recognized and permitted by federal or provincial laws of general application will be consistent with federal and provincial laws
M. de Jong: I'm not trying to be argumentative here.
[ Page 11854 ]The Chair: Through the Chair, please, members.
M. de Jong: Sorry, hon. Chair. I'm not trying to be argumentative. What I hear the Attorney General say is that the government reads that section as saying that any interest in an estate, in land, created by the Nisga'a government must be one that is presently known to either federal or provincial law.
Hon. U. Dosanjh: Hon. Chair, let me change the statement that I made earlier and qualify what I said. They cannot create other than the two estates that currently exist at law. They can create an interest of the kind that may not be currently recognized by British Columbia or federal law. But that would become a practical impossibility for them, because they will have to create a whole system of laws to deal with it. Practically speaking, they would probably be confined to creating the estates and the interests that are currently known to the law in British Columbia and federally.
Practically, they have the ability to create a different kind of interest. For instance, we didn't have strata-title interest until some years ago. They might be creative enough to create another kind of interest that they might want to recognize within their own territory. That's a possibility. They could not bring that into our land title system if they want it to depend on us.
M. de Jong: Okay, thanks. I think we're getting to the nub of the issue. One of the things I was thinking about is the possibility of creating some manner of life estate that was based around ancestral or cultural notions of clans. I can only speculate on what might be appropriate. What I think I hear the Attorney General saying is that although that theoretically exists, the practical impediment to doing that relates to section 50, where the option of opting into the British Columbia Torrens system would be precluded if there was an interest or an estate of land that wasn't presently known to B.C. land title law. Do I understand that correctly now?
Hon. U. Dosanjh: Yes.
M. de Jong: So can I put this proposition to the Attorney General, then? Might there be authority within this document for Nisga'a to say to the provincial government, by virtue of one of the earlier sections we were dealing with: "An obligation exists with you, British Columbia, to accommodate us in our desire both to be part of the provincial land title system and for you to service our newly created interest in land"?
Hon. U. Dosanjh: I think the answer to that question, based on paragraphs 3 and 4 of chapter 4, would be no. We wouldn't have to accommodate them; we have no obligation to accommodate them. The way the whole system is set up throughout the treaty, the expectation is that if they want to come and be part of the Torrens system -- the land title system in British Columbia -- they can only then create the interests or estates that are known to law at this time.
M. de Jong: Is a way to deal with that
Hon. U. Dosanjh: No, they have not given us notice.
M. de Jong: So I guess my next question is a bit speculative. Well, I'll let the Attorney General speculate: is it anticipated that this request will be made?
Hon. U. Dosanjh: Hon. Chair, I think it would be unwise to speculate. But if one was asked to, I would say that it would be more likely than not, if they wanted to enter into financing arrangements on some parts of that land.
M. de Jong: Well, if that happens -- I might have got part of the answer before I asked the question -- does that require the negotiation of some intergovernmental cost-sharing formula? When I use the land registry system, I pay fees on an individual basis for the services that I utilize. There's a fee and tariff structure in place. Would that opting in by Nisga'a government require a separate cost-sharing arrangement to be negotiated and set in place?
Hon. U. Dosanjh: Those matters are dealt with really in chapter 4, with respect to land title fees and the like.
M. de Jong: Let's go back to 47, and particularly 47(a). As part of the broad land use planning powers that are granted to the Nisga'a Lisims government, would it be fair to say that this includes the power to levy development cost charges?
Hon. U. Dosanjh: Yes.
M. de Jong: In section 48 the question that arose in my mind was simply this: why is it necessary for that provision to be here? It's something that's occurred to me with respect to a couple of the paragraphs as they've come up in this chapter. Why not just leave that for determination within the Nisga'a constitution? What was the rationale for stipulating powers at the central and village government levels for an issue like this?
Hon. U. Dosanjh: I understand that that's how the Nisga'a wanted it.
M. de Jong: All right. Let me just make the observation that it's one of the facets of this agreement that I found a bit inconsistent: the degree, on the one hand, to which the Nisga'a constitution was designed to allow the Nisga'a the maximum flexibility to determine the breakdown of powers and jurisdictions within their government, and the infrequent references in this document, in the treaty itself to how that prescriptive attempt to define that division of powers within Nisga'a government
We're going to jump ahead. My colleague from North Vancouver-Lonsdale has some questions relative to the section on human resource development -- section 68 in the chapter.
K. Whittred: Just by way of introduction, I want to make a couple of comments about the document in general, as it relates to human resource development and social services in particular. Much was said at the time that we debated this treaty about the intent of the treaty to improve the condition of
[ Page 11855 ]the Nisga'a people and to remove them from what has been a century of paternalistic life in the hands of the Department of Indian Affairs. I want to say that one of the things that surprises me about this document is how little space is actually afforded issues that relate to those general conditions that we group together under the area of human resources and social services. I throw that out as a comment at the beginning of my remarks.
Referring first of all to section 68, which is entitled "Human Resource Development," I would like to just read that through with the minister. I do have a number of questions about it, particularly as it relates to the total intent. It says:
"At the request of any Party, the Parties will negotiate and attempt to reach agreements for Nisga'a Lisims Government delivery and administration of federal or provincial services or programs that are intended to:The area that I really want to have a bit of dialogue with the minister about is exactly how they envision that happening. For example, I'll start out the dialogue by saying that this is a very global statement. Can the minister, first of all, tell me of any program -- can you name a program -- provincial or federal, that would not apply?
"a. improve the employability or skill level of the labour force and persons destined for the labour force; or
"b. create new employment or work experience opportunities."
Hon. U. Dosanjh: I think the question to ask is not what kind of program would not qualify. The question to ask is: what kind of programs would qualify? The section speaks for itself. Those programs and services could range from skills development and résumé preparation, job search and interview techniques, to training programs in a particular area of employment -- computers, machine tooling, tourism, hospitality and the like. Those are the kinds of areas that would qualify. It would be difficult to say what areas wouldn't qualify. If tomorrow the federal and provincial governments had a program to train everyone as astronauts, that could apply; but I think it's difficult to say what would not apply.
K. Whittred: I would like to continue with this a little bit further, because I do not interpret it exactly that way.
I think my original question of what doesn't apply was meant to convey to the minister that this statement is so global that, the way I read it, either the Nisga'a government, the federal government or the provincial government could request a meeting on any program that's designed by any of those three. I have difficulty imagining any program that does not affect the employability of the labour force or persons destined for the labour force.
One could argue, for example, that a nutritional program certainly affects the employability of the labour force. Where I'm going with this is: how does the minister interpret the interpretation of what is a very, very broad statement on human resource development? Where does the minister see this going? How does he see this working?
Hon. U. Dosanjh: While nutrition is good for everyone, and it is important, nutrition is not necessarily given to improve employability. Nutrition is provided so that we have healthy human beings in British Columbia, which is important. To improve employability is a very specific term and phrase and would entail some training, education and the like. I think that's where the hon. member is having difficulty, and I can appreciate that.
If one wants to read it very broadly, one could then actually include every activity. I think this is a rather restrictive section, and it's restricted to programs that are services or programs that are intended to improve the employability or skill level of the labour force and persons destined for the labour force. It may mean some programs in grades 11 or 12, apprenticeship programs -- whatever other programs that might be available.
It may not be that the federal or provincial government would automatically extend those programs to the Nisga'a. The Nisga'a may say: "We want to talk to you about this particular program, because we would like to have this as part of our school or our college or our training institute." At that point you get into negotiations.
K. Whittred: Pursuing this same line a little bit further, I want to relate it to the section on education. I think it cannot really be separated from that section, and I sense that there are some contradictions between the jurisdictions over education and this section. I'm just wondering if the minister can comment on that.
Hon. U. Dosanjh: With respect to human resource development, let me just first say that the Nisga'a would have no lawmaking authority. Secondly, important though this section might be, it places no obligation to enter into an agreement or agreements at the end of the day. The only obligation is that negotiations would occur. Attempts would be made to reach agreements whenever negotiations take place, but there is no obligation to conclude an agreement if one is not satisfactory for any party.
K. Whittred: Again, I look at this in a completely different way. The minister said that there was no lawmaking ability in human resources. Yet if you look at education, which certainly is dealing with skill levels of the labour force and persons destined for the labour force and creating new employment and work experience, you find that education does have lawmaking authority. That in fact was my question about contradictory jurisdiction. I'm just asking for a comment on that.
Hon. U. Dosanjh: I don't believe that paragraph 68 is intended to deal with issues around education, although one could argue that they are related at some point. But I think it would be incorrect to assume that somehow paragraph 68 would inform what we do in education or vice versa. It's not the case.
K. Whittred: If I heard you correctly, you said that section 68 has nothing to do with education. Yet I believe I heard you say a couple of questions back that
Hon. U. Dosanjh: Sometimes one requires education to be able to get skills that one needs. Sometimes education is self-sufficient, and you don't need to get employability or
[ Page 11856 ]skills training. I think we're into an abstract debate. All I'm saying is that this is about programs that the Nisga'a may want to access, that the federal government may want to provide or that the provincial government may want to provide. And any party at that time can say, "We want to have negotiations," whereas education
Let me just say one more thing. My official here is telling me to inform you of this, and I will do so. I'm an obedient minister here. It says: "At the request of any Party, the Parties will negotiate and attempt to reach agreements for Nisga'a Lisims Government delivery and administration of federal or provincial services or programs
K. Whittred: Well, I don't know that I'm actually making much progress in understanding this myself. So let's take an example. There is a skills development program offered through the Ministry of Advanced Education. Now, am I interpreting this correctly -- that the Nisga'a government could request to deliver and administer that program to their citizens?
Hon. U. Dosanjh: Yes.
And on that positive note, we will continue the discussion, and I ask that the committee rise, report progress and ask leave to sit again.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. D. Lovick: Recognizing that it is indeed Thursday night, I think that means that I can wish everybody a pleasant and safe weekend and look forward to seeing them all next week.
Hon. D. Lovick moved adjournment of the House.
The House adjourned at 5:53 p.m.
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