2004 Legislative Session: 5th Session, 37th Parliament
The following electronic version is for informational purposes
The printed version remains the official version.
TUESDAY, MAY 4, 2004
Volume 25, Number 1
|Committee of Supply||10807|
|Estimates: Ministry of Attorney General and Ministry Responsible for Treaty Negotiations (continued)|
|Hon. G. Plant|
Proceedings in the Douglas Fir Room
|Committee of Supply||10820|
|Estimates: Ministry of Sustainable Resource Management (continued)|
|Hon. G. Abbott|
[ Page 10807 ]
TUESDAY, MAY 4, 2004
The House met at 10:04 a.m.
Orders of the Day
Hon. G. Plant: In Committee A, I call Committee of Supply. For the information of members, they will be debating the estimates of the Ministry of Sustainable Resource Management. In this House, I call Committee B to debate the estimates of the Ministry of Attorney General and the treaty negotiations office.
Committee of Supply
The House in Committee of Supply B; J. Weisbeck in the chair.
The committee met at 10:08 a.m.
ESTIMATES: MINISTRY OF
ATTORNEY GENERAL AND MINISTRY
RESPONSIBLE FOR TREATY NEGOTIATIONS
On vote 11: ministry operations, $370,749,000 (continued).
J. Kwan: On October 3, 2003, a revenue cost-sharing understanding was signed between the province and the federal government. What type of sources of revenue is covered in this understanding?
Hon. G. Plant: Resource revenues — things like forestry or perhaps oil and gas or revenues from other resources.
J. Kwan: Does it cover only natural resources, or does it also cover raw resources or value-added products?
Hon. G. Plant: Well, there is in place a decade-old, I think, understanding on cost-sharing between the federal government and the provincial government, which supports treaty-making in British Columbia. The revenue-sharing agreement last fall was intended to include or bring into the cost-sharing understanding and relationship provisions that may be negotiated in the treaty process for sharing of resource revenues.
I'm not sure what the member means by value-added resources in this context. What we are talking about is primarily things like the development of natural resources such as forestry, oil and gas, minerals. There may be other resources, but that's the guts of the arrangement.
J. Kwan: Are the revenues of resources being considered beginning only with a treaty being signed, or are past revenues being considered?
Hon. G. Plant: The cost-sharing agreement allows us to pursue the issue of revenue-sharing before we get to final agreement — for example, in a negotiation of a treaty-related measure. Treaty-related measures, though, are typically only negotiated in the period between agreement-in-principle and final agreement. The intention behind revenue-sharing is not to negotiate arrangements that are compensation for historic takings of revenue.
J. Kwan: So past revenues are not being considered, in other words, based on the Attorney General's answer.
In the 2003 memorandum of understanding with the province of B.C. on local government participation in the negotiating of treaties and agreements, which was signed by the provincial government and the Union of B.C. Municipalities…. Has the B.C. Treaty Commission agreement of 1992 been amended to include the principles contained in the 2003 local government MOU?
Hon. G. Plant: I'm not sure that I've understood the two references exactly correctly. The agreement or protocol between the province and the Union of B.C. Municipalities is basically concerned with consultation — that is, providing for the province's ability to continue to consult with local governments as we move towards treaty negotiations. That's an obligation that we as a province accept and undertake, and I don't think it is intended to in any way affect the basic agreements that structure the B.C. Treaty Commission and that were entered into a decade or so ago.
J. Kwan: Well, the reason why I raised the question is this. I'm wondering who is responsible for overseeing that municipal interests are actually accommodated in the process. For example, the municipality of Delta recently complained that they were not meaningfully included in the Tsawwassen treaty negotiations leading up to the AIP. Who is responsible for ensuring that the local government consultation process is taking place and, therefore, that meaningful consultation includes and involves local government?
Hon. G. Plant: The basic responsibility for ensuring that local governments have a voice that is heard and given effect to in the treaty process is a provincial responsibility. It's not a responsibility of Canada, and it's not a responsibility of first nations.
Over the course of time there have been structures put in place to ensure that local governments have a voice in this process. One of those is the agreement that the provincial negotiating team at each table can include a representative of the local governments that have an issue or have a direct interest in the treaty negotiations.
In fact, Delta is a member of the lower mainland treaty advisory committee and, through that, has an opportunity to have a voice present at the treaty nego-
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tiations with the Tsawwassen first nation. They are the municipality most directly affected by the Tsawwassen negotiations. I think, though, that the lower mainland treaty advisory council, speaking on behalf of all municipalities in the greater Vancouver regional district, would say — and with some measure of, well, agreement on my part — that the whole region has an interest in the Tsawwassen negotiations.
Delta — unfortunately, from my perspective — decided they no longer wanted to have their representative at the treaty table as a member of the provincial treaty team. That was a decision they made, and I respect that decision, although I don't think fundamentally it's a decision that will help most effectively advance the best interests of Delta. We have worked hard to try to create other processes to ensure that we understand what Delta's interests are in local government issues, including a side table that Delta participates in. The lower mainland treaty advisory council still has a person at the table who is a local government official from the lower mainland and has a pretty significant interest in these issues. I think right now that person is Richmond councillor Harold Steeves.
J. Kwan: The municipality of Delta, where they actually had their representative leave the advisory committee…. Has that happened with any other municipalities, or is Delta the only one?
Hon. G. Plant: I'm not aware of any other municipality in British Columbia that has formally withdrawn from their opportunity to participate in the treaty process in the way that Delta has.
J. Kwan: The Attorney General says that he works through other avenues to ensure that the municipality's viewpoints and concerns are also taken into consideration through this process. Since this time — since Delta left the advisory committee table — have there been further discussions from the provincial government with the municipality of Delta regarding their role and their participation in this regard? Have there been any conversations with the municipality of Delta?
Hon. G. Plant: Yes. That's why a minute ago I referred to the intergovernmental relations technical working group side table that we created to try to ensure that Delta had both access to technical information about local government and related issues and also an opportunity to share their information on these issues with us.
J. Kwan: Who from Delta participates at this side table? Is it an elected official, or is it a staff person?
Hon. G. Plant: We're hoping that the mayor of Delta will come to the technical working group meetings. There have been some challenges around scheduling those meetings in a way that meets Mayor Jackson's availability. She and I spoke last week about that. She indicated very strongly her desire to participate in these meetings and hoped that we could arrange them in a way that wouldn't interfere with council day in Delta, so we're trying to do that.
J. Kwan: Last year the government made a one-time land offer to the Haida; 200,000 hectares or roughly 20 percent of Haida Gwaii was offered. The ministry's press release from September 3, 2003, stated: "The offer is designed to encourage the Haida nation to return to the treaty table with British Columbia and Canada. It does not include cash and is open to Haida nation until March 3, 2004." The Haida rejected this offer not long after it was announced.
Have the Haida shown any signs of returning to the treaty table as a result of this offer or any other actions by the provincial government?
Hon. G. Plant: We have had discussions with the Haida, who are still formally in the treaty process. I don't think I could characterize those discussions as negotiations, but we have had discussions. There has been work done in other areas — for example, land use planning — that has involved the Haida and the province in discussions, but we have not made substantive progress in the treaty process with the Haida for quite a long time.
J. Kwan: How much consultation went on with the Haida before the offer was announced?
Hon. G. Plant: In the discussions that were happening — perhaps informally as much as formally — with the Haida, there was an attempt being pursued to see if some initiative could be undertaken that would break the logjam, which would cause some forward progress to be made. There was a meeting scheduled at which there was some expectation that one or the other government would come to the table, perhaps, with a new idea. That was the meeting at which we presented the offer that the member refers to.
As a general rule, we don't consult with first nations on the offers that we make. They usually are offers that spring from some significant work that's been done to identify interests and concerns and to establish priorities and some sense of what the community's vision is for what it wants to achieve. With all of that in hand, the province tends to work to try to create an offer that is then presented, and we don't really consult with first nations directly about those offers. In that respect, what we did at Haida is not that unusual, but what we did at Haida is certainly unusual in that we had not made anything like the progress that you would hope would ordinarily have been made at a table before you sat down and made an offer like the one we made.
I have to say, though, that although we hadn't had the kind of incremental work in the treaty negotiation context with the Haida that we have had at other tables before we've made an offer, we had a couple of tools that were very helpful to the province in determining
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what might be a reasonable and creative way of breaking the logjam. We had the opportunity to look at Haida contributions to land use planning and their ideas and priorities there. We also had the opportunity to examine what was really a pretty long-term stated interest in some parcels of land in Haida Gwaii, in the Queen Charlotte Islands. Our offer was really a response to, and was responsive to, the Haida's previously declared interests in the very parcels we said we would put on the table.
We didn't kind of make it up in terms of identifying amounts or specific parcels in the Haida situation. We actually responded to what they had, over a long period of time, identified as lands and parcels of lands that were critically important to them. We said: "Fine, if those are the lands that are important to them, then we're willing to put them there and make an offer of those lands as an attempt to get treaty negotiations advanced."
J. Kwan: On the issue around the oil and gas industry, the Haida, as we know, are asserting their title in light of the developments in the area of oil and gas. The Haida recently rejected the oil and gas hearings held in Queen Charlotte City on Monday, April 12, 2004.
What is the status with respect to the oil and gas issue in relation to the Haida? What kind of consultation work is being done by the government in this regard?
Hon. G. Plant: The answer to that question will have to be found from the Ministry of Energy and Mines, because that is the ministry that has the oil and gas unit in it that is leading government's initiatives and efforts with respect to offshore oil and gas, including those efforts and initiatives as they apply to first nations.
J. Kwan: This ministry has the responsibility with the aboriginal community in terms of treaty negotiations, and this all ties into treaty negotiations, so I would expect the ministry would have been doing something in this regard and consulting with the Haida community around the oil and gas initiatives. Has there been no consultation from this ministry at all with the Haida?
Hon. G. Plant: The member may have a view of what she thinks the ministry is doing, but I think I told you what the ministry is doing in relation to the Haida. While we have had discussions with the Haida about ideas or possibilities for re-engaging substantively in the treaty process, and while it is technically true that the Haida are participants in the treaty process, it would be impossible to say that we are negotiating with the Haida in the treaty process.
I mean, we are in the process, but I don't think main table negotiations happen. I think we're still only at stage 2 or 3. You don't get to substantive negotiations in the treaty process until you get to stage 4. Yeah, they're in the process, we're in the process, and we're looking for ways to move forward. I don't think we are far enough advanced yet that I could say the Haida table is a table that shows great promise as being an early candidate for achieving agreement-in-principle by any stretch of the imagination.
Specifically, once again, the responsibility for offshore oil and gas issues as a provincial government initiative is the responsibility of the unit I referred to earlier, which is a unit of the Ministry of Energy and Mines.
J. Kwan: Based on the minister's comment and a slip of the tongue, if you will, for the minister almost to assert that they're not in negotiations with the Haida, I think, actually does not bode well in terms of trying to build relations and engage in treaty negotiation processes with the aboriginal community.
It is interesting to note though, as well, on the issue around oil and gas that this minister is basically passing the buck to the minister of oil and gas on this important issue of consultation with the first nations community. It's fair enough that the minister says I could assume whatever I want to assume. Given that this minister is responsible for treaty negotiations, I would have thought this minister would be taking the lead on the consultation question on all kinds of natural resources discussion with the first nations community, including the oil and gas component with the Haida, especially when there are many hurdles to overcome in this regard. Already the Haida, I think, are expressing their dissatisfaction with the government's view on this and have rejected not only the initial offers but also the recent hearings held in Queen Charlotte City on this matter.
I think it is incumbent on the government to be more assertive in its approach in consulting with the Haida on this issue. As I said, I would have thought it would be this minister's responsibility to undertake that work — but not so, according to the AG. Isn't that interesting? Is it any wonder that through a slip of the tongue from the minister himself, he actually basically said that they're not engaging in negotiations with the Haida in terms of treaty negotiations?
How many bands are negotiating treaties outside of the B.C. treaty process? Are there any?
Hon. G. Plant: Let me be clear. There are discussions taking place with the Haida. Those discussions take place under the auspices of the B.C. Treaty Commission. To that extent, we are absolutely in the treaty process and therefore in treaty negotiations with the Haida, but we haven't made a lot of progress in the treaty process with the Haida for quite a long period of time.
We are also working on a range of other initiatives involving the Haida. We are certainly willing, as a government, to sit down and make significant offers and progress on a range of initiatives involving the Haida. I don't think, frankly, that it serves anybody's interest to
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try to mischaracterize or recharacterize or put a political spin on the characterization of what's happening at that table. What's happening is what's happening. It speaks for itself.
The oil and gas file is a file that engages a number of issues. There are environmental issues, there are issues of federal-provincial jurisdiction, and there are also first nations issues. Those first nations issues are by no means limited to the aboriginal people of the Queen Charlotte Islands. There are first nations up and down the whole coast of the province that have an interest in the issue of oil and gas exploration and drilling.
As a result of the fact that it's a very comprehensive set of issues, government made a decision to coordinate and focus its efforts on resolving those issues by creating this unit in the Ministry of Energy and Mines. It is a matter, I think, of some relevance that the person chairing that unit — the head of that unit — is Jack Ebbels, who was the senior negotiator for the province in the Nisga'a final agreement and is therefore somebody who has an enormous amount of experience in dealing with aboriginal issues. That represents some evidence that government takes the aboriginal aspect of the oil and gas file very seriously, and we're working hard to make progress there. I think it's much better that we organize the way we do that work in one place rather than have it dispersed across government. That's why I think the oil and gas unit is a good way to approach the issue.
There are currently no treaty negotiations taking place in British Columbia outside the auspices of the B.C. Treaty Commission that I'm aware of.
J. Kwan: I'd like to just make this comment, and then I'd like to yield the floor to the member for Delta South, who has a question for the minister.
The whole issue about treaty negotiations, the issue about addressing aboriginal rights and trying to deal with historical injustices and so on, takes political leadership, and for the Attorney General to somehow say that we shouldn't be injecting politics into this matter is baffling. It takes political leadership to address these issues, and it takes a government that actually wants to pursue these matters in a fair way so that we could begin the process of reconciliation. It is about political leadership, which governments have to demonstrate — that they have the strength and capacity to do so.
With that, Mr. Chair, I'm going to yield the floor to the member for Delta South, who has a question to the minister.
V. Roddick: Thank you to the member opposite for this opportunity.
The Tsawwassen first nations band has formally signed the first urban-rural agreement-in-principle in this province, and the final treaty negotiations have now begun, I understand, in earnest. Delta as a municipality has been included in discussions for over nine years. However, during the past two years Delta has been represented at LMTAC by a councillor from Richmond, and no Delta municipal representative has been present in the AIP discussions during this time.
Will the minister and the TNO please work to ensure that the federal government, the province, the GVRD and the TFN, together with the municipality of Delta, achieve a successful treaty?
Hon. G. Plant: I think the chances of having a final agreement at the Tsawwassen table that includes elements that will work in the larger community of Delta over the longer period of time are enhanced to the extent that the corporation of Delta is able and willing to participate in discussions, particularly around local government issues like the provision of services. I have consistently hoped that Delta would be able to take an active role.
As I said earlier, they chose to withdraw from the lower mainland treaty advisory committee, and they chose to withdraw their council member who was at the negotiation table as a member of the provincial negotiating team. That decision certainly limited Delta's ability to remain fully informed about the progress of negotiations and to have an opportunity to provide input on issues, but Delta wants, I believe, to be informed and to have their views heard.
The intergovernmental relations technical working group side table was created as a vehicle to ensure that we could continue to benefit from Delta's expertise and insight on issues like land use planning and the provision of services, and also to give us an opportunity to provide technical information to Delta as we move forward. I know there is a strong component of the Delta council that is very committed to this idea that they need to be involved in this process in some way, and we're going to continue to do what we can.
I actually think that if you descend below the level of positions and get to the point of interests, which is what I think we always have to try to do when we're trying to solve problems at the treaty table, we've made great strides at the table to advance some of the interests that have been identified by Delta over the course of the nine years we've been working at this table.
We know that Delta and Delta's residents have concerns and issues and interests around the Brunswick Point lands, so we have worked to design provisions in the agreement-in-principle that give effect to those interests. We know that Delta and its residents have interests and concerns around agricultural land, and we've worked hard to give effect to those interests in the agreement-in-principle.
It's not surprising that the agreement-in-principle chapters and provisions that deal with those issues don't exactly reflect every single aspect of the position that Delta has taken on some of those issues, but those chapters don't necessarily reflect word for word the position taken by any party at the table on any issue. All of these chapters, all of these clauses represent the product of give-and-take and compromise among a host of strongly competing objectives and interests.
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What I do think is that we've done a pretty good job in giving effect to those interests in the AIP. I hope, as we work towards final agreement, that we will continue to have the opportunity to benefit from the insight, knowledge and expertise that Delta can bring to this discussion, and that we will have a chance to learn from that and put that insight and expertise to work as we move towards final agreement.
J. Kwan: Is the ministry in the process of negotiating with any of the Treaty 8 first nations?
Hon. G. Plant: We have had negotiations with Treaty 8 with respect to oil and gas issues. We were hoping to reach agreement with Treaty 8 first nations on revenue-sharing that I think may have been a very significant and progressive step forward. Unfortunately, we were not able to close the deal, if you will, on revenue-sharing at this point, but we were able to conclude a protocol agreement that I think is going to allow us to continue to develop a working relationship with Treaty 8 first nations and that I hope will provide us with a framework within which at some point in the near future we can return to the discussion about revenue-sharing and, perhaps, reach an agreement.
We have done a lot of work over time with Treaty 8 first nations around these issues. A year ago in February the Premier made a commitment to engage with Treaty 8 first nations on what have traditionally been called set-aside issues — that is, issues that Treaty 8 have with respect to pretty fundamental questions around Treaty 8. We have helped fund a significant amount of work that the Treaty 8 first nations have been doing to try to come together to work on designing processes for dealing with those issues.
We've also done other things. We provided $443,000 in funding to hire a wildlife biologist and provide Treaty 8 with enhanced capacity to participate in government's initiatives, provide GIS training and other projects that serve to support ongoing discussions on these set-aside issues.
Under the heading of economic measures and economic development, we helped fund the establishment of a business development centre in Fort St. John that is, I think, a great initiative for providing the members of Treaty 8 first nations with opportunities to develop their own business ideas. I'm informed that there is another negotiation session scheduled for next week with Treaty 8 first nations to continue discussions about these various issues.
G. Hogg: I seek leave to make an introduction.
Introductions by Members
G. Hogg: On behalf of the vibrant, effervescent and engaging member for Victoria-Hillside, it is my privilege to welcome to the House today the grade 5 students from St Andrew's School along with their teacher, Ms. O'Neill, and a number of parents. Would the House please make them most welcome.
J. Kwan: Treaty negotiations are taking place with this ministry in the area around oil and gas, but negotiations and discussions on oil and gas with the Haida community are not taking place within this ministry. They are taking place with the Minister of Energy and Mines.
How is it that one first nations community group is being dealt with through the Energy and Mines ministry in the same area of oil and gas, but Treaty 8 first nations are being dealt with in this ministry? How are they different that they require different handling through the government's point of view?
Hon. G. Plant: Well, among the differences is the fact that, as I said earlier, there are significant issues concerning the environment and offshore oil and gas drilling. There is a significant federal-provincial jurisdictional issue. In practical terms, there is a longstanding moratorium on exploration and drilling for offshore oil and gas.
Those are a bunch of reasons why the government decided to create, in effect, a special initiative around offshore oil and gas exploration and drilling. That initiative is being led by the Ministry of Energy and Mines. When we talk about Treaty 8, we are talking about a situation where the oil and gas exploration and drilling activity has been taking place for some time. There is no federal moratorium. There is no federal-provincial jurisdictional issue. The environmental issues are much more a question of how to manage the ongoing development of this resource.
As we in the treaty negotiations office have been assigned some leadership role by government in respect of working with Treaty 8 first nations on these issues, we have been very much working jointly or closely with the Ministry of Energy and Mines. So it is just a question of how government has organized the way in which leadership will be taken by different ministries for different areas of resource development.
To take another example, the member earlier suggested that she thought TNO should be the lead in consulting with first nations on all aspects of consultation. I respect that perspective, but that's not the way we've organized it. In practical terms, it is much more effective to have the day-to-day mechanics of ongoing consultation work in the hands of the line ministries who have the subject matter expertise in forestry and mining and the development of land tenures. Most of that day-to-day consultation around forestry and mining and land tenure work is actually done by line ministries.
We are informed about what is happening, and we certainly have an opportunity to participate in discussions internally in government to ensure we act in a way that is consistent with our governmentwide stra-
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tegic objectives. Government tries to work as a team here, but we don't lead the day-to-day consultations in, for example, forestry or mining or land tenure work.
J. Kwan: In this instance, has the Attorney General asserted the view that first nations must be consulted to the Minister of Energy and Mines?
Hon. G. Plant: That question, unfortunately, is stated in such general terms that I am not sure I am able to answer it. What kind of consultation, with whom and for what purpose would be additional elements of that question that I think I would need to know before I was able to try to answer it.
J. Kwan: Well, if you follow the logic of the discussion so far, we've been talking about oil and gas initiatives. We've been talking about the Haida community. I've been asking the minister questions about consultation with the Haida community. The minister says that that's the responsibility of the Minister of Energy and Mines. In that context, I have asked the minister the question: has the Attorney General asserted the view that first nations must be consulted to the Minister of Energy and Mines?
Hon. G. Plant: As a matter of constitutional law, government has some obligations in respect to aboriginal rights and title, which in some cases will include the obligation to consult. It may also include the obligation to accommodate the interests of first nations in respect to apprehended infringements of aboriginal rights and title. The Ministry of Attorney General provides legal advice to other ministries of government to assist them as they discharge those obligations.
As a government, in October 2002 we updated the provincial Crown land consultation policy to ensure that ministries had an appropriate policy framework for consultation with first nations that was consistent with the state of the law as coming from recent court decisions. That policy, though, was implemented under the leadership of the Ministry of Sustainable Resource Management. As I say, the policy development work was informed by the Ministry of Attorney General. That's another element in this.
The problem, I suppose, or the challenge around answering a question which uses the term "consultation" is that government tries to deal with affected parties and potentially affected stakeholders around a whole range of public policy issues — economic policy, social policy and fiscal policy — and in doing its job as government tries to consult with the province as a whole and all sorts of stakeholders. The use of the word "consultation" in that context is probably different from the use of the word "consultation" when it is connected to the identification of obligations that arise under section 35 of the Constitution Act of 1982.
Again, this is all by way of saying that the very open and undefined way in which the member has asked the question makes it hard to answer. The Ministry of Energy and Mines, like all ministries of the Crown, is obliged to follow the law, and the law in some circumstances requires that there be consultation and accommodation with respect to apprehended infringements or infringements of aboriginal rights and title. It's a big part of the work of government nowadays to work within the policy framework, the provincial Crown land consultation policy, to ensure that we do discharge those obligations on a case-by-case basis. That obligation is assumed and discharged and managed every day across government by all the ministries — certainly all the resource and land ministries of government — including the Ministry of Energy and Mines. It doesn't require any specific direction from me along the lines implied by the member's question. It is part of the day-to-day general business of government.
J. Kwan: The minister said the Ministry of Sustainable Resource Management is actually coordinating a policy regarding consultation on this. Is there a name for the coordination of this work? What is the title? What is it called under the government — this policy framework?
Hon. G. Plant: In October 2002 the Ministry of Sustainable Resource Management revised what existed as a policy framework around consultation and made public a new policy document which is called something like the provincial Crown land consultation policy. It's a public document. It's been there since October 2002.
I think that late last year — I'm not exactly sure when — there was an internal reallocation of resources from the Ministry of Sustainable Resource Management to the treaty negotiations office. Some people moved from SRM to TNO. Those are people who have day-to-day responsibilities around this policy framework. While the policy framework was put forward and created under the leadership of Sustainable Resource Management, the framework is now the responsibility of the treaty negotiations office.
J. Kwan: The framework is now the responsibility of the treaty negotiations office, so it is this minister who's responsible for coordinating the consultation work that needs to take place with the first nations community. Am I right in understanding this?
Hon. G. Plant: Our responsibility is to ensure that the guidelines remain current. The day-to-day responsibility for implementing the obligations is a line ministry responsibility.
J. Kwan: Is there anybody within government that actually ensures enforcement, if you will, or makes sure that the guidelines are followed? Who does that work?
Hon. G. Plant: Hundreds, if not thousands, of public servants have that obligation every day of the week.
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J. Kwan: I'll tell you, maybe the minister is flippant with his answer to my question, and maybe the minister thinks this government is doing such a fine job that one need not oversee this issue….
J. Kwan: The Attorney General is shouting at me, saying: "Calm down, calm down; don't rant at me." Well, if the minister actually takes the questions seriously and answers them seriously, then maybe we can have a proper discussion here. The question put to the minister about who actually ensures the policy is being followed is a legitimate question.
Ultimately, the government is accountable. Ultimately, if this minister is charged with the responsibility of putting out the policies to the various ministries, I would think that this minister would be responsible for ensuring that the ministries actually follow through with those policies. Then it would make sense for the minister to answer the question with respect to consultation for the Haida community on the oil and gas file.
The minister, though, when I asked those questions, said: "Well, don't ask me; go and ask the Minister of Energy and Mines." This minister's responsible for ensuring that that policy is being followed. Maybe the minister can just get up and put on record, then, that he will ensure that policy is being followed by the Ministry of Energy and Mines and that the Haida community, the Haida first nation, is in fact being consulted with respect to offshore oil and gas. That's all the minister has to do: give the reaffirmation to the opposition and to British Columbians that consultation with the Haida is actually taking place on the offshore oil and gas file.
Hon. G. Plant: Is the member interested in pursuing a question around offshore oil and gas, or is the member interested in pursuing a question around the day-to-day business of those lands and resources that are actually being administered and developed by government? Because of the way that government has organized itself, those are, in some respects, different issues. We have a different process in place for the offshore oil and gas resources.
The consultation policy that I spoke about is a policy that guides the ministries of the Crown in the day-to-day business of making decisions about land or grazing permits or forest licences or placer leases or all of that stuff. There is in fact no development of offshore oil and gas happening right now. That's because of a number of factors, one of which is that there is a moratorium in place on offshore oil and gas drilling. Another factor is that there continues to be a jurisdictional issue about who would be the government — which level of government has responsibility here.
There are other issues, including the fact that up and down the coast first nations have expressed a variety of different perspectives on the desirability and sustainability of an attempt to develop those resources. Because of that set of issues, government has chosen to give special priority to those issues by creating a special unit that is working towards resolving those issues. That has involved discussions with a number of first nations. If the member is interested, I'm sure that the Ministry of Energy and Mines in their estimates or the minister could provide answers to the member about the details of the work that's been done.
It seems to me, and I have said this pretty consistently as one minister of the Crown, that it is unlikely we are ever as a province going to advance oil and gas drilling and exploration in any significant way until we have made some progress on those various issues — the three pillars, if you will. One pillar is the environmental pillar, about which a lot of work has been done, as the member knows. One pillar is the federal-provincial jurisdictional issue. The third pillar is first nations and their issues and interests.
There is more work that needs to be done, and that is work that is being done in a different part of government. It is work that I have an interest in following — make no mistake about that — but in fact the responsibility for managing that file is another minister's responsibility. That is the way we have chosen to organize it. The expertise around oil and gas science does not lie in the treaty negotiations office. The expertise around energy and mining lies in the Ministry of Energy and Mines, and that is a big part of the work that needs to be done. That is why that issue is with Minister Neufeld.
The consultation obligations that arise day to day across government take place under a policy framework that is now the administrative responsibility of my ministry. I was not being at all flippant when I said that these responsibilities are discharged every day across government by hundreds of civil servants. Each ministry is obviously responsible for ensuring that the policies and legal obligations that they are subject to are complied with.
My ministry has a real interest in ensuring that the general activity of government in this area is consistent with our legal obligations and also advances our governmentwide goal of building certainty in our relations with first nations and, where we can, with the treaty process at the centre of this, making progress at the treaty tables.
J. Kwan: Is the Attorney General of the view that because the offshore oil and gas initiatives have not yet been implemented by the government, therefore consultation with the first nations community need not take place until such time?
Hon. G. Plant: I spent some time trying to explain to the member the work we're doing to ensure that first nations are a part of the discussions around oil and gas, and she should direct those questions to the minister responsible for that initiative.
J. Kwan: With the exception of this. The provincial policy for consultation with first nations states clearly, and let me quote:
[ Page 10814 ]
"Consultation principles. Consultation efforts should be made diligently and meaningfully and with the intention of fully considering aboriginal interests. Where a sound claim of aboriginal rights and/or title is made out, consultation efforts must attempt to address and/or accommodate a first nation's concerns relating to the impact of the proposed activities on the aboriginal interests that it identifies or of which the Crown is otherwise aware."
It goes on to say:
"The following principles…apply to all consultation efforts and should be followed throughout the entire process of consultation.…
"Through consultation, the province must consider aboriginal interests prior to making land or resource decisions concerning Crown land activities that are likely to affect those interests and attempt to address and/or accommodate concerns that are raised, provided that those concerns relate directly to aboriginal interests that are sound and to impacts of Crown decisions on those interests."
Then it goes on with a series of guidelines that talk about how consultation needs to take place.
Now, it has been established already from the Haida that they are asserting their title in light of the developments in the area of oil and gas offshore development. The Haida are asserting their right to title. You would think that the government and the Attorney General, who are responsible for the implementation of this policy, would actually take a broader view and a stronger view in ensuring that consultation actually does take place with relevant ministries with respect to this. You would think that.
So far, what I've heard from the minister and the Attorney General is that there is an implication and suggestion from the government and from this Attorney General that consultation need not take place with the first nations because the implementation of offshore oil and gas drilling has not yet taken place. It has not yet begun because there is still a series of procedures one needs to follow to go down that route.
We know that this government wants to go down the route of offshore oil and gas drilling. We have heard all the noises from the government in that regard. The Haida have actually asserted their rights and title on this issue. There is an obligation for the government to consult. You would think the Attorney General would be bothered enough to actually go and talk with his colleague the Minister of Energy and Mines to ensure that consultation is in fact taking place and that this policy, which this minister is responsible for, is actually being followed by the various ministers.
The Attorney General sits there and says that I don't know what I'm talking about, and then the minister of state for energy and mines is sitting there laughing. It is no laughing matter when it comes to consultation with the first nations community with respect to first nations interests, with respect to the first nations right to title, with respect to the first nations and the government's legal obligation to consult.
There has been a series of court decisions that outline the government's responsibility — legal responsibility — to consult with the first nations. The oil and gas offshore issue falls, in my view, in that category of the government's legal obligation and responsibility to consult with the first nations community. The Haida have asserted their right and their title to the oil and gas issue. The minimum that this Attorney General could do is ensure that his colleagues are following the provincial policy for consultation with first nations.
Hon. G. Plant: We are spending millions of dollars as a government to do exactly that.
J. Kwan: Yeah, with the exception that the Attorney General would not confirm whether or not he's actually making sure the Minister of Energy and Mines is following through with this policy.
You know what? This Attorney General doesn't want to answer the question. Well, we'll bring the question to the Premier. Ultimately, the Premier is responsible for this executive council. We'll bring that question to the Premier to see what sort of consultation is in fact taking place with the first nations community in regard to offshore oil and gas drilling.
The Agricultural Land Commission Amendment Act, 2004 — Bill 27 — was introduced and read a first time on April 26, 2004. According to the Minister of Sustainable Resource Management: "These amendments to the Agricultural Land Commission Act enable first nations who are involved in the treaty negotiations or have signed treaties to apply directly to the Agricultural Land Commission to change land uses of treaty settlement lands within the agricultural land reserve." Currently, first nations are required to obtain the approval….
The Chair: Hon. member, just one moment, please. I believe that legislation is under discussion, and you, at this point in time, certainly cannot refer to it.
J. Kwan: Okay.
The Chair: It can't be discussed during these estimates while it is still in the House. Proceed to a different question, please.
J. Kwan: I just want to lay in the context of this bill, and then I am going to ask questions not related to the bill.
The Chair: Member, you cannot relate to this bill at all during the discussion of the estimates, so I ask you to move on to a different question.
J. Kwan: I'm going to ask questions not related to the bill but related to the issue of the Agricultural Land Commission's authority. The reason why I bring up the bill and I just want to put out the context of the questions….
The Chair: Member, we have asked you not to refer to the bill. You are not, at this point in time, able to refer to Bill 27. So proceed.
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J. Kwan: As I said, I'm not going to be asking questions about the bill. I'm asking questions related to the Agricultural Land Commission and the authorities that it has related to first nations communities.
The Chair: That's correct, member, but in the next sentence you mentioned the bill once again. Please proceed without any reference to Bill 27.
J. Kwan: Well, without talking about the bill — just understanding, though, in the context of what we are dealing with, the background, so that one understands the context of what we're talking about — first nations who have reached stage 4, the agreement-in-principle…. First of all, can bands not involved in the treaty process apply to the Agricultural Land Commission?
Hon. G. Plant: The member is asking a question about the operation of the Agricultural Land Commission, which is the subject of its own statute. The issue of standing, under the Agricultural Land Commission, is a matter of interpretation of that legislation. That legislation is currently being amended, or an amendment has been proposed that is before the House. Either way you look at it, I think the question is about the very issue which is at the heart of the legislative proposal.
There may be other issues around agricultural land, which I am happy to answer if they relate to the treaty negotiations office. But the Land Commission is the responsibility of the Ministry of Sustainable Resource Management, and there is an amendment to that legislative framework that deals with the very issue the member's question goes to. Really, I don't know how that is appropriately a subject for estimates debate.
The Chair: Hon. member, it may be appropriate to save these questions for committee debate on Bill 27, which I assume will be up fairly soon.
J. Kwan: Do all decisions over the agricultural lands rest solely with the Agricultural Land Commission?
Hon. G. Plant: There is in British Columbia something called the agricultural land reserve. Decisions about the agricultural land reserve and the lands in that reserve are subject to the decision-making authority of the Agricultural Land Commission, which is not the responsibility of the Ministry of Attorney General or the treaty negotiations office. Those issues are, in fact, also the subject of proposals to amend the Agricultural Land Commission Act — which proposals are currently before the House in the form of legislation.
J. Kwan: Decisions relating to the agricultural land reserve, which the minister says are made by the Agricultural Land Commission…. Do they have to consult with the treaty negotiations office?
Hon. G. Plant: I don't think I am here to answer questions on the responsibility of the Agricultural Land Commission, which is created under a statute that I'm not a minister responsible for and has functions and responsibilities that are currently the subject of legislative proposals that are before the House. I am not here to answer open-ended questions about how government operates. I'm here to be responsible for the expenditures and programs of the treaty negotiations office and the Ministry of Attorney General.
The Chair: Hon. member, it might be worthwhile for you to deal with this under the Ministry of Sustainable Resource Management, which is currently running in the other House — so maybe a thought for you to consider.
J. Kwan: With the exception of this. I know that this Attorney General — and he certainly has demonstrated it in the past — somehow thinks questions put to him in this Legislature are beneath him for him to answer. He takes that perspective, and he has taken that perspective ever since he's been in that chair as the Attorney General. With the exception of this, Mr. Chair. This minister just admitted on record that he is responsible for the provincial policy for consultation with first nations. The question that I put to the minister about agricultural land reserve decisions and whether or not there is a requirement for the Agricultural Land Commission to consult with the treaty negotiations office is absolutely relevant to this minister's responsibility. It is relevant to the first nations with the provincial policy for consultation with first nations.
Maybe the minister doesn't want to answer the question. Maybe the minister thinks somehow he doesn't have to respond. Well, he needs to put some clarity to the question around the obligation of consultation which he is in charge of. Is there an obligation for the Agricultural Land Commission to consult with the treaty negotiations office and with the first nations community with regards to agricultural lands and the agricultural land reserve?
Hon. G. Plant: I apologize. I missed the details of the question. The Agricultural Land Commission is created as an independent agency, and whatever obligations it has are defined by the statute and by the general law applicable to the functions of administrative agencies. As a day-to-day matter across government, when Forestry officials, mining officials and others are thinking about responding to applications for tenure, there is a consultation policy in place that applies to those decisions. But to a real and significant extent, I believe, that is a different process from the process followed by independent tribunals and independent agencies when they are required to make decisions.
One of the challenges I face right now is that I'm not certain I could survey the landscape of the 30 and more administrative tribunals in the province and ex-
[ Page 10816 ]
plain comprehensively what their general obligations at law may be. I'm not, generally speaking, responsible for the day-to-day work that these agencies do.
The member may ask: what obligations does the Labour Relations Board have to consult with first nations in respect to decisions that board may make? What obligations do residential tenancy arbitrators have in respect to those issues? I put the question, what obligations does the Agricultural Land Commission have, in somewhat the same context. I don't mean to or want to in any way avoid the topic, but I guess my question is: what is the member's real question here? What is it that she really wants to talk about? Can we get that down to what it is that we're doing in the treaty process, how I'm spending the budget in my ministry?
The consultation policy speaks for itself. If we're going to have a line-by-line debate on it, that's fine. I'm in the member's hands in terms of that.
It is hard to have a debate about the Agricultural Land Commission and their responsibilities without having in front of me the Agricultural Land Commission Act, without having in front of me the legislative proposals to amend that act and without, frankly, knowing really what the member's interest is in here. Every day there are applications made to the Agricultural Land Commission around the province. That commission has rules of practice and procedure for how it deals with those applications. I'm not privy to those.
I do have a very real and comprehensive interest in ensuring that government as a whole is aware of the constitutional principles that apply to aboriginal rights and title issues and that we have policy frameworks in place that ensure we comply with those obligations. I think that in practical terms, we do a pretty good job of complying with those obligations on a day-to-day basis. The member would be able to stand up and identify situations where there are first nations who have complaints about the extent to which we do that. There's litigation about that from time to time. That represents a handful of situations set against a provincial government decision-making framework that involves hundreds of these decisions being made across government every week, the vast majority of which I believe are made in a way that is very respectful of any obligations that may or may not exist to consult with and accommodate first nations.
I don't want to get in the way of the member's interest here, but a debate about the functions, responsibilities and obligations of the Agricultural Land Commission — which is essentially a debate legally interpreting the work of the Land Commission — is, in my respectful view, beyond the scope of a discussion about the work of the treaty negotiations office.
J. Kwan: Let me tie it together for the Attorney General as to how things link. The minister again has just displayed, with his diatribe, his disdain for the notion of consultation. Once again he's just displayed his absolute disdain for the notion of consultation.
First nations communities do have interests on land and claims to land title. Some of that land encompasses the agricultural land reserve's land. Given that that is the reality, then it follows that decisions made by the Agricultural Land Commission impact treaty negotiations.
You would think that this Attorney General would make that connection and would actually take the view that Agricultural Land Commission decisions impact treaty negotiations and would therefore want to see that provincial policy for consultation with first nations, which he is responsible for, is being applied and followed by the Agricultural Land Commission and that when decisions are made by the Agricultural Land Commission that have relevance to aboriginal land title issues, the treaty negotiations office is consulted. The logic here is not that far a leap. It is fairly reasonable to make this assertion.
How many first nations involved in treaty negotiations are now claiming traditional territories that encompass agricultural land reserve land?
Hon. G. Plant: Most of the province is covered by claims of aboriginal rights and title. I expect that means that most parts of the agricultural lands of British Columbia are in some way subject to assertions or claims of aboriginal rights or title. Many of these would probably be found within the boundaries of statement-of-intent areas filed in the B.C. Treaty Commission process, and some of these would be found in other assertions of traditional territory claims. I expect that a significant portion of the agricultural land of British Columbia is subject to claims of aboriginal rights and title.
I only make that statement because virtually all of the province is subject to claims of aboriginal rights and title, and it would stand to reason that included within that would be significant portions, if not all, of the agricultural lands of the province.
J. Kwan: Given that it is the case, as I suspected, and the Attorney General has now confirmed that agricultural lands do fall into the assertions of aboriginal rights and title, then it would follow that decisions made by the Agricultural Land Commission impact treaty negotiations.
Is there any communication that takes place between the Agricultural Land Commission and the treaty negotiations office?
Hon. G. Plant: Usually what happens is that someone comes along with an idea that changes the use of the land they own. They want to develop some land, or they want to buy land for the purpose of developing it in order to do what they want to do on the land. At some point they're going to need tenure of some kind — a licence or lease — or maybe they will need to change the character of the land ownership in some way. Quite often those decisions are going to involve line ministries of the Crown. That's when the consulta-
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tion, the guidelines and the policy framework come into place.
We have dealt with agricultural lands issues in some of the treaty negotiations, including at least two of the negotiations that are now in the final agreement stages. There are provisions in the Tsawwassen AIP and the Lheidli T'enneh AIP that deal with the fact that lands that are of interest to the Lheidli T'enneh and the Tsawwassen are within the agricultural land reserve, and the AIP contains a process for ensuring that those issues can be resolved. In both cases that resolution process will involve the Land Commission at some point making a decision in response to applications that are made to it. The decision will be made by the Land Commission as an independent agency, having regard to their statutory mandate and the principles and policies they have adopted for dealing with these issues.
J. Kwan: Isn't this interesting? Prior to the Attorney General getting up to answer the question, he actually said none. That's what he said to my question about whether there was any communication between the treaty negotiations office and the Agricultural Land Commission. He actually sat in his chair and said none — no communications. Isn't that interesting? We know treaty negotiations involving first nations deal with traditional territories that encompass agricultural land reserve lands that have been identified within, yet there is no communication between the Agricultural Land Commission and the treaty negotiations office.
It certainly seems to me that this Attorney General does not take a proactive role in ensuring that the provincial policy for consultation with first nations is followed. We have established that on the offshore oil and gas issue. It certainly seems to me that on the agricultural land reserve issue, the Attorney General takes the same perspective. You know, on consultation with the aboriginal community, you would think the government and this minister would be cognizant of the fact that they need to consult with first nations before decisions are made.
I know that so far the government has not demonstrated that perspective on yet another file, another decision the government has made. First nations are not consulted on this. On April 1, 2003, during last year's estimates debate, the minister said that there were 44 bands located along the rail line. This is the former Minister of Transportation. She stated: "There are 44 bands along the B.C. Rail line, and B.C. Rail has worked very hard and, I believe, very successfully in having ongoing active relationships with those bands…." Since then, the number of bands along the B.C. Rail line being used by government is 25 bands. Which is the accurate figure?
Hon. G. Plant: There are 25 bands with which B.C. Rail has historic business relationships, and that is the number we are using for the purpose of our work on the B.C. Rail first nations benefits trust.
J. Kwan: How many bands are located along the B.C. Rail line?
Hon. G. Plant: We don't have the answer to that information, which would be information that B.C. Rail would have and therefore a good question for the Ministry of Transportation.
J. Kwan: The former Minister of Transportation said there were 44, so I will go with that figure, given that the Attorney General doesn't know. I will go with the former Minister of Transportation's answer that there are 44 bands along the B.C. Rail line.
Do the tracks run through traditional territories of these bands, or do they actually go through reserve lands?
Hon. G. Plant: The B.C. Rail corridor does a number of things. I believe in some cases it abuts reserves. In some cases it may cross through reserves. I suspect that for much of the track, the track is included within the asserted traditional territories of different first nations across the province.
J. Kwan: Do the B.C. Rail lines pass through any territories being contested between two or more first nations groups?
Hon. G. Plant: There are overlap issues around the province. I don't have a map that conclusively illustrates those issues, because while we have some knowledge of that, our knowledge is not perfect. That is a question that the member should direct to the first nations of British Columbia.
J. Kwan: I tell you, Mr. Chair, the cavalier approach this minister takes to his area of responsibility is shocking. This is the minister who is responsible for treaty negotiations, and he can't even be bothered to find out if territories around and along the B.C. Rail corridor are being contested between two first nations. He couldn't even be bothered to find out how many first nations have territories that run along the B.C. Rail line. This is the minister who is responsible for treaty negotiations? How frightening.
What kind of message is this Attorney General trying to send to British Columbians with his answers to my questions? What kind of message is this minister trying to send to first nations with respect to treaty negotiations? Is it any wonder that we have a letter from the First Nations Summit saying that the government is not taking treaty negotiations seriously, through a variety of the government's actions — certainly based on the Attorney General's answers so far and certainly based on the government's budget and their cuts to the treaty negotiations office.
The lack of commitment demonstrated by the Attorney General to treaty negotiations is shocking. He can't be bothered to find out basic information that is absolutely relevant to his work as the Minister Respon-
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sible for Treaty Negotiations. The minister says, "Well, I don't know," and it seems to me he is saying: "I don't care, either, whether or not two or more first nations groups are contesting territories along the B.C. Rail lines."
This is absolutely pertinent to this government because the government, of course, is selling B.C. Rail. The government has signed an agreement, a secret agreement with respect to B.C. Rail. We now know through leaks that the B.C. Rail line could actually be sold for a dollar — the land on which the B.C. Rail line sits.
The Minister of Transportation stated that the Attorney General was consulted over the process of advising first nations in regards to the B.C. Rail deal. Is this true?
Hon. G. Plant: I'm glad to have the opportunity suggested by an earlier part of the member's intervention, where she asked the question a couple of times: "What is the message that we want to send as a government about treaty negotiations?"
Here's the message that I want to send about treaty negotiations. For the first time in almost 13 years, we are now at a stage where we've got four tables at final agreement negotiations. That represents an unprecedented level of progress. The tables are located in different parts of the province, and at each of the tables, I think there is a willingness and a commitment on the part of the first nation and the government of Canada and the government of British Columbia to try to actually see if we can produce final agreements.
This is exactly responsive to the question the member asked. What I want to be able to say is that we're actually finding success at the treaty tables, and we've done that because we have been strategic in our allocation of resources. We focused our energy where we think the chance of success is greatest. Canada, as it happens, has undergone pretty much the same priority-setting strategic exercise, and they've identified pretty much the same tables we have. That has also been a contributing factor in helping us get to this point where we are at final agreement negotiations at four tables.
At each of those tables, I think the first nations have also been pretty committed to demonstrating the leadership that's involved in putting their communities sort of out in front. That leadership involves a certain amount of risk-taking on the part of those communities, because others are looking hard at the fact that we are close to final agreements. That's a bit precedent-setting, and sometimes it takes a bit of courage to be willing to be out there making the tough decisions that are going to have to be made in order to get the final agreements.
We survey the landscape of the province and try to assess which tables are at different stages of progress. There are other tables where the first nations community has come together in a way that demonstrates commitment to putting forward a vision that is achievable and to making the decisions as a community that need to be made in order to make progress.
We think there are a number of other tables where, with a bit of concentrated effort over the next year or so, we could get to agreements-in-principle. I think that's also good news. It shows that if we get past these final agreements, if we get two final agreements, we've got some other tables that are ready to move up and become the next set of final agreement tables.
I think, to be honest — and I do think you have to be honest about this — not every table is as far advanced as that for a whole host of reasons. The Squamish first nations, for example, are very successful economically and have a very strong vision about what their community wants and needs. They are very effective at working to achieve and implement their goals and objectives, and they have made it pretty clear that they don't think, right now, that the treaty negotiations process is a priority for their community.
We're not making significant progress in treaty negotiations with the Squamish, but we're making great progress as a government in working with the Squamish to resolve issues of common interest, to build a relationship founded on respect and trust. Really, we've shown that opportunities become available when you do that — even if we are not, within the four corners of the treaty process, moving forward as quickly as some might want toward an agreement-in-principle.
There are other tables where for whatever reason, we haven't been able to get to a point where we are close to AIP. Since I raised the Squamish example, let me take another example from urban British Columbia. The Musqueam table has been at stage 2 for years in this process, going back to at least the mid-nineties. It has not been possible to get the Musqueam table even to stage 3 to sign a framework agreement where we could begin AIP negotiations.
Now, there was a reason asserted by the Musqueam why that wasn't possible, and that was because the two governments at the table said it was a precondition to their willingness to get into stages 3 and 4 that governments be willing to discuss in broad terms the idea of compensation. For years the federal government and the former provincial government took the position that they would not discuss the issue of compensation in the treaty process.
What appeared to me when I looked at it was that to some extent, that had become an arbitrary obstacle to progress as opposed to a principled reason for no progress. I said to the leadership of the Musqueam directly: "Look, if we agree that compensation can be discussed, will you come to the table? Will you sign a framework agreement?" I recall the moment when I said that. It was an interesting moment in terms of other folks in the room. I think it took them aback that we were willing to take that step forward, but we worked on that for a while.
It turns out that Canada also had to try to reconsider its position around the compensation issue, and
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unfortunately, while Canada has reconsidered its position, we still don't seem to be able to persuade the Musqueam to sit down and get to a point where we can formally sign a framework agreement and get on to stage 4 in the process. I suppose sometimes I could say that this is a bit frustrating. But the member did ask me what it is that I want to say to the people about what progress we're making in the treaty negotiations, and it seems to me that's part of what I want to say about what we're doing in the treaty process.
At the other end of the scale, there are tables where I think there is great hope for early significant progress. Perhaps, I mean, it may not feel like early progress to those who wonder why we have been at this for a decade without getting final agreements, but we are very close.
Within the last week or so, I was at the community of Yekooche, and that is a community that has certainly had many challenges in the treaty process. They said very clearly to me that they want to get to AIP, and they want to get to AIP soon. I think they've got a number of ingredients and things in place that certainly give me a sense of hope that people would not have had about treaty negotiations at that table four or five years ago.
There is a spectrum across the province. Unfortunately, a third of the first nations of British Columbia still are not in the treaty process, so that is part of this picture. But the member was interested in what I would say about our progress at treaty negotiations and what is it that I could say. Those are some of the things that are pretty close to the heart of what we do in this ministry and are, I think, reasons to be excited and challenged, filled with hope and determination to continue to move forward over the next year.
The member has expressed interest in the issue of what I have in the way of a ministry budget here. One of the things that I think has to happen before we make blanket general statements about the budget in the ministry of the treaty negotiations office is that you have to drill down below the main one-line number. Then you will realize that some of the things this ministry is responsible for from a budgetary perspective are really just transfers or fiscal transfers of obligations that are assumed…. Whether it is the implementation of the McLeod Lake Indian band adhesion agreement or the Nisga'a final agreement or other obligations, those amounts rise and fall quite significantly from year to year, depending on the way in which those processes are working.
The core budget item that is important from this perspective is the amount for the actual operation of the treaty negotiations office, which has reduced over the last couple of years, but we knew that was going to happen. We knew that was going to happen, and we planned for it very carefully. We have all the resources we need to devote the effort and energy that we need to achieve success at the final agreement tables, and we are very committed to doing that.
We have the resources we need to continue to serve all of the other tables in the process and to try to provide the energy and the decision-making that need to be provided, especially at the tables that are far advanced toward AIP. We don't have an endless amount of resources, but we do have the resources we need to do the work we have to do and particularly to do the work that I think is most important for us in this office at this time.
I look forward to the opportunity to continue the discussion about the great work that we're doing in the treaty negotiations office, although I understand one of my colleagues would like to seek leave to make an introduction.
B. Locke: I seek leave to make an introduction.
Introductions by Members
B. Locke: Mr. Chair, I am pleased to welcome in the gallery today about 79 grade 5 students, parents and their teachers from Dr. F.D. Sinclair Elementary. I am hoping they are enjoying themselves today in the precinct and in Victoria. Will the House please make them all very welcome.
J. Kwan: I asked the minister a straightforward question. The Minister of Transportation stated that the Attorney General was consulted over the process of advising first nations in regard to the B.C. Rail deal. Is that true?
Hon. G. Plant: The treaty negotiations office was not directly consulted by the people who were working on the deal, the B.C. Rail investment partnership. We have been consulted about and have worked on the initiative called the benefits trust.
J. Kwan: I want to be very specific, and I'm going to quote the Minister of Transportation — what he said during the estimates this year. On April 27, 2004, the Minister of Transportation said: "The Attorney General was consulted and agreed with the process followed in informing and advising first nations of details of the partnership arrangement." Is this true?
Hon. G. Plant: I am a member of cabinet, and I have been an active part of discussions about this transaction for a very long time. That would probably include the discussions encompassed by the member's apparent quotation from Hansard.
J. Kwan: There is a whole series of quotes from the Minister of Transportation relating to the involvement of the Attorney General on the B.C. Rail deal, and I will go through those line by line with the minister. I will be canvassing with the minister about his involvement
[ Page 10820 ]
and what actually took place with respect to the first nations community on this.
Noting the time, Mr. Chair, I move that the committee rise, report progress and ask leave to sit again.
The committee rose at 11:53 a.m.
The House resumed; Mr. Speaker in the chair.
Committee of Supply B, having reported progress, was granted leave to sit again.
Committee of Supply A, having reported progress, was granted leave to sit again.
Hon. G. Plant moved adjournment of the House.
Mr. Speaker: The House is adjourned until 2 o'clock this afternoon.
The House adjourned at 11:55 a.m.
PROCEEDINGS IN THE
DOUGLAS FIR ROOM
Committee of Supply
The House in Committee of Supply A; H. Bloy in the chair.
The committee met at 10:10 a.m.
ESTIMATES: MINISTRY OF
SUSTAINABLE RESOURCE MANAGEMENT
On vote 35: ministry operations, $68,415,000 (continued).
J. MacPhail: For the minister's and staff's information, I'm going to do Agricultural Land Commission. Then I've got a couple more questions on resort development that will proceed very quickly. I'm then going to go to fish and then to Land and Water B.C. issues, including Lannan forest, and I think that it will be it for me.
Agricultural Land Commission. Last month the agriculture industry was here with a very effective presentation, and my colleague from Vancouver–Mount Pleasant and I had a chance to sit down with producers and processors, both on the animal side and on the vegetable side. Some of these issues came up during our discussion with them.
The first issue is the goal of the commission that says…. I think this is new under this government, but I could be corrected on that. Anyway, it's a progress report that I wish. One of the goals of the commission is "…a provincial agricultural land reserve system that considers community interests." There was some concern raised about how much weight is given to all of the factors, including community interests. What experience has the Agricultural Land Commission had with that, and what has been the result of the weighting?
Hon. G. Abbott: In reference to the member's first point, the reference to community interests is not new. It has been there, I gather, under a succession of governments, including the government which the member was a part of.
In terms of the intersection between community planning, which of course is the responsibility of the local government — whether it's an organized municipality or an electoral area under the regional district system — in most cases, what occurs…. I had 17 years of this, so I've got a little bit of an idea of how it all works. Typically, a municipality or regional district will bring forward their small-c community plan for all or a portion of their community. In some cases, that plan may line up with the current boundaries of the agricultural land reserve within that jurisdiction; in other cases, it may not.
There is, certainly, a kind of ongoing and dynamic process where the commission staff or the panel will meet with the community and try to work through some of the issues around those. I guess that in some cases, they're resolved to the community's satisfaction, and in other cases, they're not. I know of more than a few cases where municipalities grind away on issues because what they see as an appropriate land use designation for the future of their municipality may not line up perfectly with the existing designation under the Agricultural Land Commission.
J. MacPhail: With the new regional model of the Agricultural Land Commission, has there been any change in outcomes as a result of the new regional model around this issue of community interests?
Hon. G. Abbott: I apologize for this. I should have introduced Brian Underhill, who is the director of planning at the agricultural land reserve.
There have been a couple of important changes in recent years around the Agricultural Land Commission. The former government under Minister Corky Evans, as the member would recall, actually altered the approach of the commission somewhat, moving away from one single provincial panel to three. That has been extended under the current government from three to six, and as the member knows…. The issue of first nations reference, I guess, is an important point to bring in here, but it doesn't change the number of panels. There will still be six panels, an increase from three under the last administration.
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Staff advise me that there have been no real changes in terms of how the intersection, again, between community planning and agricultural land reserve planning proceeds. Local governments are satisfied and, I think, pleased with the increased number of panels. That's not to say they're always pleased with the outcome or the decisions of those panels, but I think they are appreciative of the process.
J. MacPhail: In the '04-05 through to '06-07 Agricultural Land Commission service plan I note that they list as an ongoing challenge the "continuing reluctance of the vast majority of local governments to assume more decision-making responsibility within the ALR." That same service plan also states that the commission did not meet last year's target for delegating some decision-making to local governments. It has revised its target to focus on those local governments that have expressed interest in delegation.
Can the minister explain the genesis of those two statements and elaborate on the strategy?
Hon. G. Abbott: The provision for local delegation of some functions that are carried on by the commission has been in the act since 1996. The commission has been pursuing that potential opportunity with somewhat more vigour since, staff reckon, about the year 2000. We currently have, as a consequence, one delegation agreement in place on subdivision within the ALR with the Fraser–Fort George regional district.
The statement the member references is towards the interest of the commission in having more of those delegation agreements. For a variety of reasons and, I'm sure, a general reluctance to broaden responsibilities, we have not seen a lot more delegation agreements, but there are at this point in time 14 local governments that, like Fraser–Fort George, have shown an interest in this area. So the commission takes the view that they will focus their energy on trying to build agreements with those 14 jurisdictions as opposed to trying broad-brush to attempt to persuade a broader group, which at this point in time does not have that interest.
I think, generally speaking, what we're trying to do here is see a local government take on responsibilities that can be managed locally. The Fraser–Fort George agreement is an example of that, and I suspect as local government gets more comfortable with that kind of delegation agreement, we expect to see more of them in the future.
J. MacPhail: I want to explore the area of the local governments and the agricultural land planning, and that will also spill over into my questions around resort development as well.
We know anecdotally and just travelling the province — we British Columbians — that the blur between urban and rural development is getting blurrier and blurrier. Some of that resulted in some of the interface forest fires. I expect there are growing pressures on local governments that they've got to make revenue; and the economy in British Columbia is being driven by house building, by residential construction — that is the main driver.
What are the Agricultural Land Commission and the minister doing to ensure that local governments are not pressured for the wrong reasons to change the use of agricultural land that's inside the agricultural land reserve?
Hon. G. Abbott: The member raises some very good points. I don't think I have an exhaustive answer to the question.
Actually, the question she poses is one that has perplexed governments since probably 1972. We're really dealing with an evolutionary area here as opposed to one where one can set down a set of boundaries and enshrine them in perpetuity. That just doesn't happen, as the member knows, so governments have to deal as efficiently and effectively with the decisions in this area as they can, to be as sympathetic as they can to the needs and aspirations of communities without, on the other hand, upsetting the balance in terms of the goal that's been set out by both government and society that we want to see viable agricultural land protected and the agricultural sector itself continue to be viable into the future.
There is a range of things — and again, I think the member will be familiar with a number of these — that we do to try to encourage the responsible and effective use of land within the boundaries of municipalities and the agricultural land reserve. One is a supportive tax and assessment policy. As the member knows, we do try to support the farming industry by having a ratio for farms that is quite liberal in relation to other areas of industry.
We are, on an ongoing basis, working with the Ministry of Agriculture, Food and Fisheries to try to ensure that there is clarity to the boundaries of the agricultural land reserve. That's not to say that there won't always be — because there will always be — differences of opinion between some municipalities and regional districts and the commission with respect to some of the, I guess you could call them, grey areas or marginal areas, where arguably the best use or the highest and best use should be either agriculture or some form of development from the municipality or the local government's perspective. We do try to work with MAFF to provide what clarity we can.
We also work with, and I know we were working when I was the minister responsible for Community, Aboriginal and Women's Services — in particular, the housing and municipal affairs sections of that ministry…. We need to try to encourage efficient and kind of concentrated land uses so that we don't put additional pressures on agricultural land reserve lands. One of the things we have as a fact of life in British Columbia, as the member well knows, is that something like 5 percent of the province is available for agricultural and developmental uses. A lot of British Columbia is steep
[ Page 10822 ]
or rocky and difficult to develop for that reason. We need to make sure that in the areas that are available for agriculture and for development, we make the best land use decisions so that we can best manage those ongoing pressures between development and agricultural uses.
J. MacPhail: I'd like to explore a couple more tools, if I may. The minister said that they're going to concentrate on getting an additional 14 or so delegation agreements with local governments. I'm wondering whether he or his staff have considered ensuring that those delegation agreements include developing agricultural area plans, having agricultural advisory committees, ensuring that — I think the minister has already addressed the issue of making sure there are bylaws and appropriate assessment tools in place; I think he used the word "taxing," but I was going to say "assessment" — there be encouragement that local governments develop better data regarding land use, including agricultural use. Are any of those tools being considered in the negotiating of delegation agreements?
Hon. G. Abbott: The short answer to the member's question is yes. When we are moving towards delegation agreements with local governments, among the items that are used to support local governments are agricultural area plans and agricultural advisory committees. Those, we believe, are both supportive kinds of measures as the local governments move toward voluntary agreements with the Agricultural Land Commission.
The member also references better data, and that is a very important point. One of the important — I shouldn't say projects, because it's way more than a project…. A major goal of the ministry is to improve the database for agriculture in a whole range of areas of economic and social activity in the province through land information B.C.
J. MacPhail: On the issue of the different uses of land, the minister refers to 5 percent available for agricultural use and development. I want to talk about that in the context of resort development. The service plan also states that the ministry and both the minister of state and this minister will be tasked with increasing the number of sites allocated for resort development on Crown land. How does that jibe with the role of the Agricultural Land Commission to ensure the protection of the land in the agricultural land reserve?
Hon. G. Abbott: I guess it's difficult to sort of give a narrower or definitive answer to this. It is a big province, and of course, we can have resort developments that are mountain ski hills, or we could have resort developments that are focused around, for example, a golf course. In the case of the former, the mountain resort, chances are there won't be a conflict with the Agricultural Land Commission because, by and large, agricultural operations, as the member knows, tend to be on flat bottomland. Certainly, where resort development might be focused around a golf course or an activity like that, the potential is there for a conflict in terms of the boundaries of the proposed development and the boundaries of the agricultural land reserve within that area.
What we do is within each specific application — and of course, the local governments have to see this application before the Agricultural Land Commission sees the application — we would look forward, first of all, to the recommendations of the local government, be it a regional district or a municipality. In respect of that application they might argue, for example, that the development was not in accord with their official community plan or with the site-specific zoning, in which case the conversation might be shorter. If the local government was supportive of the application and it was one that conflicted with the boundaries of the reserve, we would have to work with the proponent and with the local government to see if there was a way in which the proposal could be accommodated. But again, this is the sometimes difficult issue of balance.
The member, I'm sure, will recall with some clarity issues that her own government faced around this area of resort development versus maintenance of the agricultural land reserve. They're not easy questions, and they have to be worked through on a one-off basis. It's really impossible upfront to say definitively that something would proceed or not proceed. Of course, there are always issues around the quality of the agricultural land, where it's located in relation to other agricultural enterprises, what the impact would be on the broader agricultural community of the proposal and what the impact would be on the community if the proposal were to proceed. These are all issues that tend to be pulled together and that are sometimes challenging for local government and for the commission as they reach conclusions about whether it should proceed or not.
J. MacPhail: What I have learned in 13 years of being elected is that governing is tough and glib solutions proposed sometimes are just that — glib — and not solutions at all. I certainly have learned that over 13 years.
What is the plan to make sure that resort development, particularly on Crown land, is protected from wildfire and doesn't enhance wildfire?
Hon. G. Abbott: The member may be seeking something more specific than I can offer at this point, but of course, she can come back and ask me another question if this answer doesn't work.
I think the 2003 forest fire season highlighted in everyone's minds the critical importance of (a) preparation and (b) effective response in every area — whether it is within or on the boundaries of an organized municipality or whether it is on Crown land adjacent to a municipality but off in a corner of a regional district.
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Wherever that fire potential exists, obviously we need to address it, both from a preparedness perspective and from a response perspective.
In the last forest fire season the Ministry of Sustainable Resource Management helped in a number of ways in terms of the fire response; the generation of information about topography, climate and soils; and in a whole range of areas that are very useful to the firefighters from the Ministry of Forests in preparing the appropriate response to the challenges faced. They were able to generate information, and I think that in 2004 and into the future, through land information B.C., we will be able to generate even better and more information for the firefighting preparation and response cause.
I think the other important point, I guess, is that in terms of moving forward into the future, like other ministries of government, both the Ministry of Sustainable Resource Management and Land and Water B.C. have embraced the Filmon report. We fully intend to do our parts to ensure that the recommendations of the Filmon report are implemented. Hopefully, we can move forward in terms of preparation and response on firefighting issues.
J. MacPhail: Those are my questions for the Agricultural Land Commission and resort development. I'm going to move to fish farms.
I want to start, if I may, just by clarifying or seeking more information around a question I asked around the Crown land special account. I'm just doing this from memory, but I believe that account is for GAAP purposes and that it had about $211 million booked into it. The minister stated that that was — yes; I'm sorry — about $211 million. That was to book the value of Crown land but included a retroactive or a booking up to March 31, 2004, but the future booking would be around $50 million, as I recall. I could have that wrong, but I don't….
What distinguishes between a past accounting — up to March 31, 2004 — and a forward accounting of an annual rate of about $50 million?
Hon. G. Abbott: The discrepancy — or the difference, I should say; it's not a discrepancy…. The difference between '04-05 of the $210 million allocation and future years where, again, it's going to be in the range of $50 million to $60 million…. We are, in this current fiscal year, because of GAAP — where we now have to expense the allocation of free Crown grants and nominal rent tenures — attempting to deal with the backlog of those applications. We expect to do that within that $210 million envelope, so we expect that the demand from municipalities, regional districts, non-profits, etc. moving forward into the future will be in that $50 million to $60 million range. I hope that clarifies the point for the member.
J. MacPhail: Okay, so it's the backlog of applications around tenure — lease and sale or just lease?
Hon. G. Abbott: No, just free Crown grants and nominal rent tenures. The commercial side of it is distinct from this.
J. MacPhail: Thank you.
We've had quite a dialogue, this minister and I, around the forgiveness of fines and the payment back of fines to fish farms totalling about $1.5 million. I had quite an interesting dialogue with the Minister of Agriculture, Food and Fisheries, who claimed that he knew nothing about this until it was announced in the media. When was this minister first aware of Land and Water B.C.'s decision to refund and forgive these fines and rents?
Hon. G. Abbott: I don't have a precise date. I think I became minister responsible for this ministry in late January, January 26 or something like that. It certainly became an issue probably within a week of my assumption of the new ministerial responsibilities.
J. MacPhail: So the matter never went to cabinet?
Hon. G. Abbott: I can't speak to the issue prior to my assumption of the ministerial responsibility in late January.
J. MacPhail: Sorry. Yes, the minister has to. A cabinet shuffle doesn't preclude legislators the right to ask questions, and besides, this minister isn't a new cabinet minister. So the question was: did the issue of forgiveness go to cabinet?
Hon. G. Abbott: No.
J. MacPhail: What Treasury Board order permitted Land and Water B.C. to take this action without cabinet approval?
Hon. G. Abbott: The view of Land and Water B.C. and of the ministry is that no Treasury Board order was required. In our view, invoices were issued improperly in that there was not proper notice generated to the fish farmers under the Land Act. Hence, there was no need to forgive because there was no legal debt created.
Now, the issue, as the member may know, has been looked at by the auditor general of British Columbia, and I think there was some review of this matter early on in the months after the decisions were made. As a result of a request from the Sierra Legal Defence Fund, the auditor general has taken an additional look at it. I'll read to you from a letter of March 26, 2004, from the auditor general to Bill Valentine, who is the president and CEO of Land and Water B.C. Inc. It begins:
"Re: application of Financial Administration Act to Land and Water B.C. Inc.
"On February 4, 2004, Sierra Legal Defence Fund wrote to me requesting that I 'undertake an audit of decisions made by British Columbia Assets and Land Corporation, BCAL, to forgo collection of fines assessed against
[ Page 10824 ]
aquaculture companies operating in non-compliance with their aquaculture tenures.'
"Sierra Legal Defence Fund was of the opinion that BCAL 'forgave up to $1.5 million in fines assessed against the non-compliant companies contrary to established policy and without any ministerial or cabinet review or approval.'
"After a preliminary review of issues raised by Sierra Legal Defence Fund, I decided to do additional work concerning whether the Financial Administration Act applied to BCAL at the time of the decision to forgive indebtedness. I advised Sierra Legal Defence Fund of my decision by letter dated March 10, 2004. You received a copy of that letter. I asked my staff to work with the comptroller general to clarify if, or the extent to which, the Financial Administration Act applies to Land and Water B.C. Inc, the current name for the corporation that was BCAL.
"My staff has met with representatives of the comptroller general and the Attorney General to consider the issue of the application of the Financial Administration Act to Land and Water B.C. Inc. I have been apprised of the results of those discussions, and I conclude that Land and Water British Columbia Inc. was subject to the Financial Administration Act at least with respect to those activities where it was acting pursuant to the authority set out in the 1998 delegation agreement between the Minister of Environment, Lands and Parks and British Columbia Assets and Land Corporation concerning the administration of Crown land.
"Land and Water B.C. Inc. currently administers Crown land pursuant to authority set out in the 2003 delegation agreement between the Minister of Sustainable Resource Management and Land and Water B.C. Inc. Under the provisions of this agreement, Land and Water B.C. Inc. continues to be subject to the provisions of the Financial Administration Act. I found that BCAL chose not to collect assessments made for unauthorized use of Crown land by fish farm operators that it might have been able to collect. However, the scope of my review did not include an examination of whether BCAL's financial administration of Crown land tenure accounts was or is consistent with government financial management requirements. You may wish to consult with the office of the comptroller general concerning the proper interpretation and application of those requirements."
That's signed by Wayne Strelioff, the auditor general.
J. MacPhail: Did the minister make that letter public?
Hon. G. Abbott: The letter has not been public to this point.
J. MacPhail: The auditor general said that he found that BCAL, LWBC, is subject to the Financial Administration Act and should have collected or could have collected fines subject to that Financial Administration Act but that the scope of the review didn't go beyond that.
I wonder whether I could have a copy of that letter. It does sort of say that the minister's argument that those fines shouldn't have been collected in the first place is not legitimate, as I'm reading that letter, according to the Financial Administration Act.
Mr. Chair, I'm wondering whether the minister's staff could make that copy available to me now, while they're working, or if someone else could make a copy of it. I would appreciate that.
Hon. G. Abbott: We're happy to provide the member with the copy.
In response to the member's question, we're happy to hear her questions once she gets a copy of the correspondence we've just shared with her. Again, the auditor general was the auditor of record in 2001, and he specifically reviewed this particular issue.
The view of Land and Water B.C. Inc. in its former permutation as BCAL is firmly of the view that the provisions of the Land Act apply and that due to the failure to provide proper notice with respect to the indebtedness, there was no legal debt created. Further, the auditor general requests in his letter of March 26 that we may wish to consult with the office of the comptroller general concerning proper interpretation and application of the requirements of the FAA, and we are doing that.
J. MacPhail: I have no idea what that legal stuff was that the minister was just saying — about there being no legal debt created. Is the minister somehow suggesting that that wasn't proper legal notice as of May 28, 2001, when a decision note was prepared for cabinet, No. 12105003V002, which listed at least ten companies having been billed for inappropriate use of tenures — 54 tenures at 125 sites? Is that somehow what the minister is suggesting?
Maybe I can clarify. I want to be clear on this, because I'm quite astounded by this letter from the auditor general that says clearly: "BCAL chose not to collect assessments made for unauthorized use of Crown land by fish farm operators that it might have been able to collect."
I want to read from this decision note that I just listed. This is advice from the ministry to cabinet, or to the minister. It says:
"At present, 54 tenures of the 125 sites held by ten companies have been billed using the 2 times zone rate formula."
That's a formula that is billed when companies are not in compliance.
Then the note goes on to say:
"Industry representatives who have visited the office to question the billings — Stolt and Heritage, who collectively hold nearly one-quarter of the tenures — have commented that BCAL has been more than fair. Detailed discussions with clients regarding rental calculations have demonstrated that BCAL is being very fair in arriving at the rents and giving any benefit of the doubt to industry. These clients have agreed with our approach."
[R. Hawes in the chair.]
Hon. G. Abbott: The member asked a series of questions, and if we could do them one at a time, I
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think that would be useful in terms of getting a clear understanding of this.
The member initially quoted from a draft briefing note, which was prepared by one official in LWBC for another. There followed from that a letter to the industry that indicated trespass, etc., and the penalty provisions that would be a part of that. LWBC subsequently determined that in fact part 6 — that is, "Trespass on Crown Land" — of the Land Act had not been fulfilled in terms that proper, appropriate and legal notice of trespass on Crown land had not been given. The member could reference in that regard section 59(1), (2) and (3) of the Land Act, which goes into some detail of what is required in terms of notice of trespass on Crown land.
J. MacPhail: What is the date of that opinion?
Hon. G. Abbott: While I'm sure the issue had been discussed previously, the issue of non-compliance or lack of proper notice in respect of the Land Act was formally identified in a draft of August 23, 2001. It was in November 2001 that the correction was made.
J. MacPhail: I have that briefing note from August 23, 2001. Could the minister point out where the Land Act is referenced?
Hon. G. Abbott: The answer to the member's question is that the Land Act is not specifically referenced in that briefing note. A number of the issues around this, though, were raised. There were other discussions between the CEO and senior staff with respect to how this had been undertaken. They concluded — appropriately, I think — that there had not been administrative fairness followed in terms of the imposition of the penalties. They concluded, therefore, that they would be withdrawn.
J. MacPhail: The Land Act requires administrative fairness for imposition of penalties. Tell me what the process was for notifying tenure holders and companies that they were in violation of their tenures. What was the process that was unfair?
Hon. G. Abbott: Again, the member can read the Land Act herself in respect of the issue in part 6, "Trespass on Crown Land." I'll quote a portion of this, 59(1):
"If a person does anything that is an offence under section 60 (a) to (g), the minister may, on notice to that person, do one or more of the following: (a) require the person to cease the unauthorized occupation of the Crown land, give up possession of the land and restore the land to a condition satisfactory to the minister."
I'll move down to (c):
"Require the person to pay to the Minister of Finance and Corporate Relations a sum of money considered by the minister reasonable in the circumstances," etc.
Then under 59(2):
"The notice under subsection (1) or (4) must state the following: (a) the time and place of the unauthorized occupation or possession, unauthorized use or other contravention; (b) details of the unauthorized occupation or possession, unauthorized use or other contravention; (c) the requirement, action or direction of the minister under subsection (1); (d) if applicable, the time period within which the person must act on a requirement of the minister; (e) if applicable, the amount of the penalty imposed under subsection (4) and the date by which the penalty must be paid."
Then under 59(3):
"The notice under subsection (1) may be given (a) by personal service on the person or by registered mail addressed to the person, or (b) by posting it on the Crown land if the person is unknown."
That is some of, I think, what the member was requesting in terms of what the legal obligation is. The staff on review by Land and Water B.C. found that staff did not follow the notice requirements set out in the Land Act. They have acknowledged that an error was made in that respect, and in terms of the process and administrative fairness, it was concluded that the penalty should be withdrawn.
J. MacPhail: Is the minister reading from a regulation or the actual act?
Hon. G. Abbott: I was quoting from portions of the Land Act, part 6, "Trespass on Crown Land."
J. MacPhail: Okay. Let's go through it one by one, and tell me where BCAL didn't meet the test of administrative fairness — one by one. And tell me exactly what BCAL either did do or didn't do in the areas — one by one.
Hon. G. Abbott: Again, I'll try to address the member's question and also — this gets interesting and complex and fascinating — I'll try to set the context here as well.
There were, in the 1990s, a number of disputes between the aquaculture industry and the provincial government in respect of issues around expansion, around anchoring. What was minor expansion? What was minor anchoring? What was major anchoring? What was major expansion? A number of the issues remain unresolved, and again I'll quote, as I think I had before. I think I used this in the Legislature in response to a question this member had in respect of salmon farming.
This is a letter from Cathy McGregor, the Minister of Environment, March 31, 1998:
"The provincial government is reviewing the salmon aquaculture report prepared by the environmental assessment office and is considering options on how to proceed with the implementation of this report. Until this review is completed, the ministry is allowing fish farms to remain status quo. This includes allowing expired fish farm tenures to operate until a formal decision is made on the replacement applications."
This again is to set the context that there were ongoing issues between the industry and the government.
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There was a mass of unresolved issues. Again, I think that's where the issue of administrative fairness begins to come into play. Does one send out fines for issues that had been unresolved for some period of time?
The member asked, though, the specific question about where the provisions of the notice that was provided by LWBC or its predecessor did not meet the test of part 6, "Trespass on Crown Land." I've asked staff specifically where in part 6 the test was not met. Again, I won't go through every section; the member can reference these. It did not meet the test in 59(1)(a), 59(1)(b), 59(1)(c), 59(1)(d), 59(1)(e) and 59(1)(f). As well, the provisions of 59(2) were not met, nor were the notice requirements under 59(3).
J. MacPhail: What an unmitigated failure by BCAL — an unmitigated failure. Somehow I don't believe it. I don't believe it at all.
The minister referred to a letter by Cathy McGregor, somehow saying that it confirmed that these unauthorized expansions were allowed. I checked, after the minister used that, and the minister knows he's deliberately misusing that letter. That letter was to say to fish farmers that given the moratorium, the government wasn't planning on changing any aspects of tenure in place, given the salmon aquaculture review in relationship to an expansion or change in the moratorium.
It didn't say that status quo includes illegal activities. It's disgusting that the minister would use that letter. Does he think bureaucrats who have lived their lives dealing with this wouldn't tell us the truth around that? Does he think the bureaucrats who still work with him and do their job every day, wouldn't put that in historical context for us, let alone the minister?
He uses that letter to say that while his government is justifying and letting off the hook illegal activity, it was on the basis of a former government's letter. Wrong. There was anxiety in the industry around whether a moratorium was going to be expanded or changed, and the minister put that letter out to say that the status quo of tenures in place would remain — not illegal activity or unauthorized activity. It's only his government that actually promotes unauthorized activity and rewards people for unauthorized activity.
Let me quote from this decision note to the minister dated May 21, 2001, followed up…. Let me ask the minister this: who amongst these people still works for government — Bill Mottershead, Brian Moen, Duncan Williams, Bill Valentine?
Hon. G. Abbott: I'll get the answer to that question for the member, but I first want to address the issue she's raised. I quoted the McGregor letter to set the context in which decision-making was made in the late nineties and early 2000s. I think the letter is actually spot-on in terms of setting out the context in which decision-making was made.
We have acknowledged that, in fact, an administrative error was made. I'm not condemning anyone for that. This member wants to create a great political fuss around an administrative decision that was made, first to send out the billing and secondly to say that it had not met…. This was not a political decision; this was an administrative decision. I think setting the context is entirely appropriate, because there was enormous confusion in and around the industry and the regulatory framework because of the decisions of her government.
Now, she's attempting in her usual fashion to construct a great conspiracy theory, presumably to draw in the politician. This was not a political issue; this was purely an administrative issue. I think, actually, that the administrators acted entirely appropriately. There's no reason, including an auditor general's review, to suggest they did not.
J. MacPhail: This minister made it political.
Hon. G. Abbott: You made it political.
J. MacPhail: It wasn't a question I asked him in the Legislature. It wasn't one of the lob questions from his little backbench MLAs where he said: "Oh, look at this. Cathy McGregor justified these payments." There wasn't any confusion around the salmon aquaculture review; there was disagreement. Yes, there was disagreement, but there was not confusion. What the letter stated was that the status quo of legally issued tenures would remain in place while a moratorium was discussed, not illegal activity.
Let's go through the list here. We have the documents: a briefing note from May 28 from the bureaucrats to this government, followed up by an August 23, '01, briefing note asking for a decision, in '01, outlining all of these. Then in '03, which is 18 months later, the government says: "Here, friends. Here's all of your back rent back. You're off the hook for penalties because — oops — we made an administrative error in…." What year? What year was the administrative error made?
The briefing note says the discussions and the notice in writing to the people in violation started in the year 2000, or it was in writing in the year 2000. When did it dawn on the minister that the bureaucrats had it all wrong?
Hon. G. Abbott: I want to run through a chronology of this so that the member understands clearly the scope of the decision being made, who was involved in the decision and the appropriateness of it. In August 2000 a general letter was sent to the industry describing how occupational rents will be administered. On May 28, 2001, a draft information note — and I think that's what the member is referencing — was prepared for Jack Hall of LWBC in preparation for his meeting with the BCSFA. On June 28, 2001, LWBC staff met with the industry to hear their concerns. August 2000 to November 2001, invoices were sent to industry based on August 2000 letters. Then, on the previously referenced August 23, 2001, Bill Mottershead, who is no longer with LWBC, drafted a decision note on fish farm rents.
[ Page 10827 ]
The senior staff at LWBC considered this matter. In November 2001 a decision was rendered, and work began on correcting the invoices.
J. MacPhail: Let's go through the notes, here. This is a note dated May 21, and I'm putting it in the context of where the minister says the entire 59(1), 59(2) and 59(3) under the Land Act was violated. Every single aspect was violated, this minister says. That's what he just said. Interesting.
The background note. This is dated May 28, 2001: "There is some resistance from industry to payment of occupational rents at two times the zone rates and they are claiming that proper notice was not provided to industry. BCAL has" — that would be the first indication that the aquaculture industry is going to try some sort of administrative fairness argument — "consistently informed industry that occupational rental for areas outside of tenure boundary will be billed at two times the normal rental."
How did they fall down? How did BCAL not…? Where did they fall down?
Hon. G. Abbott: They didn't follow the Land Act.
J. MacPhail: No, I'm asking you how they didn't follow it. Right there is the first hint that the industry is going to talk about administrative fairness. There's the first hint. What did BCAL not do? It says right here: "BCAL has consistently informed industry that occupational rental for areas outside of the tenure boundary will be billed at two times the normal rental." That seems like they gave them notice. How did it not meet the test of 59(1), (2) or (3)? Give me the details.
Hon. G. Abbott: I'm advised by staff that while there were verbal discussions between LWBC and the operators, there was not the formal written notice that is required under the Land Act.
J. MacPhail: Okay. Let's carry on with the briefing note. It says: "Industry has expressed concerns over the occupational rental process and claims that proper notification was not sent." This is May 28, 2001. We're going to get to why the government just didn't correct the administrative fairness issues that they claim allowed them to give back $1.5 million, but let's see whether there were errors in the first place. "However, BCAL has consistently informed industry that they are responsible for occupational rent outside the tenure area at two times the normal rate. They have been informed verbally at SAIAC and in writing." Is that a lie?
Hon. G. Abbott: No. The briefing note is correct, but it is not consistent with the provisions of the Land Act.
J. MacPhail: What's SAIAC?
Hon. G. Abbott: It is the Salmon Aquaculture Implementation Advisory Committee.
J. MacPhail: The minister says, "Oh yeah, they were informed verbally and in writing," but I guess the letter didn't meet the test of the Land Act. How? Can the minister read the letter into the record that they now have judged doesn't meet the test of the Land Act? Could he read it into the record? When did they determine that it didn't meet the test of the Land Act; and what did he do about it, other than just give the money back to the industry?
Hon. G. Abbott: For the member's information, I'll quote the letter of August 28, 2000:
"In order for British Columbia Assets and Land Corporation, BCAL, to deal expeditiously with its review of replacement tenures for expired salmon aquaculture tenures, we will be implementing the following review process.
"Companies whose tenures have expired or will expire within the next 12 months will be required to complete a 'commercial aquaculture management plan for marine tenures first issued before October 18, 1999,' within 90 days of receipt of this letter. Upon BCAL receiving a completed management plan, the appropriate referrals and paperwork will be processed within four to six months. Referrals will be sent to appropriate government agencies, first nations and resource boards. The requirement to advertise applications will not normally be required if the development plan reflects the actual use of the land as per the last two years. BCAL will evaluate advertisement requirements on a site-by-site basis."
Actually, it says bases, but I presume they mean basis.
"Depending on the results of the review process, your company will be issued either a replacement licence of occupation for up to five years — replacement with a longer-term tenure will be dependent on the results of the B.C. Environment interim monitoring program — or notice to relocate due to conflicts identified through the replacement referral process.
"Farms will be allowed to continue occupation of the current site until completion of the current production cycle and/or obtaining a tenure for a relocation site. Until the review process is completed, we will allow expired tenures to operate at the sites they currently occupy. This is consistent with a letter from Minister C. McGregor dated March 31, 1998.
"Occupational rentals will be collected for the time periods between the dates of the expired tenure and the replacement-relocation tenure. Use of areas beyond the former tenure boundaries will result in an occupational rental. Rent will be administered as follows: occupation of the expired tenure boundary, normal rate; occupation beyond the expired tenure boundary, two times the normal rate until the date of submission of a completed development plan accepted by BCAL, after which the normal rate will be applied.
"If you have any questions on this matter, please contact Duncan Williams, BCAL finfish coordinator."
It provides his phone number and is signed by Max Nock, regional manager.
The member's question, I think, was: where is it not in compliance with the Land Act? It does not meet the test that is set out in the Land Act.
J. MacPhail: Yes, but where? How? Go to the Land Act and tell me why that letter isn't notification, how it
[ Page 10828 ]
doesn't set out penalties. Just tell me. What great legal mind said that didn't meet the test of the Land Act?
Hon. G. Abbott: We can get into a world of detail here. Perhaps the member wants to, and I'm happy to do that. Again, I think LWBC has acknowledged that errors were made with respect to the imposition here. I'm happy to carry on this conversation as long as the member would like in terms of the detail involved.
I'm advised by staff that normally, when notice goes out, there is a template letter which in fact references the provisions in the Land Act that are breached. In this case, that was not done specifically. I'll just provide two instances here, but we can go through it in detail if the member wishes and ask which of the provisions in subsections 59(1)(a), (b), (c), etc., apply. We can go through all of that if she wishes.
Just in terms of the failure to meet the test, I'm advised by staff that 59(1)(a) requires the person to cease the unauthorized occupation of the Crown land, give up possession of the land and restore the land to a condition satisfactory to the minister. That was not done. Section 59(1)(b) requires the person to cease the unauthorized use of the Crown land and restore the land to a condition satisfactory to the minister. That was not done. Undoubtedly, in numerous other ways, in the opinion of the staff here….
Hon. G. Abbott: Again, the member can be as critical as she likes of public servants who are attempting to make appropriate decisions based on a matter of administrative fairness. She can laugh if she likes, Mr. Chair. I know she is given, whenever it suits her purposes, to be remarkably critical of public servants. Now she's going to dig around here until she finds, from her perspective on some grassy knoll….
J. MacPhail: Nervous?
Hon. G. Abbott: I'm not nervous at all, member. You're the one that should be nervous.
The Chair: Through the Chair, minister.
The Chair: Order.
The Chair: Order, order.
Hon. G. Abbott: There's no issue here. If she's digging around to find some political pay dirt, she's not going to find it, hon. Chair. She's welcome to keep digging forever here. All she's going to continue to do is dig out details about an appropriate administrative decision that was made. I've given her a couple of examples of where it falls short of the test.
Again, this was not something that was done at a political table. This was a group of dedicated public servants attempting to come to grips with a very difficult situation and, I think, acting entirely appropriately in rendering some decisions to bring some order into a world that had not been well managed by the previous government.
J. MacPhail: Oh, but all of a sudden those same public servants that were managing it under the previous government…. Now that work was bad; that work was awful. Who is trying to not politicize this? Every time a question is asked about this, this minister said: "Oh, that big, bad former NDP government — weren't they awful. It's all their fault."
Let's just go through the salmon aquaculture industry and what's happened here. We have evidence back to 2000 that the bureaucrats had been warning the salmon aquaculture industry — through an advisory table, both verbally and in writing — that they were going to have their tenures dealt with in a certain fashion — all meeting the test of the Land Act about where they could work and where they couldn't. That meets the test of 59(1)(a). That's exactly what that letter said, that the minister read about the areas where they could operate and where they couldn't. Here's what the penalty or the charge was going to be for operating according to that letter. That meets the tests of 59(1)(a), (b) and (c). That's 2000.
An election happens, May 2001. The political officials receive briefing notes, May 28, 2001, about the circumstances around back rent, tenures and the work that had been done. In August 2001 another briefing note is prepared, with recommendations on how to handle this. Meetings still continue with the industry, but it turns out that the industry has a much closer relationship with the new administration, and all of a sudden their protests about having to pay back rent take on a new aspect, and the argument they'd been making about lack of proper notice all of a sudden has great salience. Circumstances haven't changed, but the argument about improper notice has great salience. All of a sudden, it turns out that all those previous arguments that they've been making prevail — without any change in the penalties, fines and back rent that was to be imposed.
In the meantime, we have meetings going on with the salmon aquaculture industry. We have a Minister of Agriculture who actually had to step down because of inappropriate, but not criminal, activity personally taking place between Stolt Sea Farms, which is specifically mentioned as one of the groups that got off the hook by hundreds of thousands of dollars — phone conversations.
The auditor general looks into it, and here's what the auditor general says — the government didn't decide to release this letter, though: "I found that BCAL chose not to collect assessments made for unauthorized
[ Page 10829 ]
use of Crown land by fish farm operators that it might have been able to collect." Interesting. Not a mention of the Land Act in here — not a mention. Subject to the Financial Administration Act and that they should have collected….
Just before we rise, Mr. Chair, perhaps the minister could table the legal opinion that suggests that the letters they have sent to the industry don't meet the test of administrative fairness. Mr. Chair, it's over a million bucks of taxpayer money that we're talking about, that this government gave back to the industry.
Hon. G. Abbott: The member concocts here a house of nonsense, from one faulty and false premise to another. Again, the provisions of the letter of August 28, 2000, do not meet the test of the Land Act. That was the decision of the day, and I believe it still stands. The member suggests that it did meet the test, and it does not meet the test.
In terms of the suggestion — and again, it's entirely a concocted notion — that political officials received the notes that she references from May and August, political officials did not receive those notes, I am advised by staff. They were discussed internally within LWBC and BCAL, but they were not shared with the politicians. It was not a political issue.
The member expresses some surprise that, on review, the senior officials in BCAL would choose to change their view with respect to this matter. Again, it's entirely appropriate for senior officials — whether they're bureaucratic or political, I suppose, but in this case administrative or bureaucratic — when they are confronted with evidence that an act did not have sufficient validation in statute, to take a second look at it.
They did that. Again, I've tried to set out the context here a couple of times for the member. She doesn't choose to accept it, because she does want to build a world of concocted political conspiracies. I think what we have here is nothing more nor less nefarious than a group of public servants who are attempting to provide some administrative fairness to meet the statutory tests that they need to, to make decisions that will allow the corporation to move forward with some confidence and to resolve some longstanding unresolved issues.
Again, I know the member takes an entirely different view, and she's welcome to that, but that is precisely what has happened here.
J. MacPhail: I'm just going to finish on this point, Mr. Chair, and then we'll move along.
So the minister says that this was all just bureaucrats doing their job. Well, the evidence we have about bureaucrats doing their job is a May 28, 2001, decision note saying that all procedures have been followed properly and that the fines and the back rents should proceed. Okay.
Then we have a briefing note where there's a recommendation to the CEO that all proper procedure had been followed — no mention of the Land Act. In fact, both notes specifically address the issue of proper notice and say that proper notice had been given and make a recommendation that Land and Water B.C. proceed to collect the fines and back rents. Then all of a sudden, unless the minister didn't deliver on the FOI request, no paper in between to say: "Oh, we now have a legal opinion to say that those previous opinions we had were wrong." No legal opinion, no legal advice, but a lot of talking and chatting between this government and the salmon aquaculture industry — a lot that we know of.
After lunch I'm sure the minister will come forward with a legal opinion — legal advice that counteracts the two briefing notes that say everything is fine, that all proper notice has been done, no mention of the Land Act, and that the government should continue to put the fines forward and collect back rent, just as the auditor general said they had the ability to do. I'm sure I'll get that legal advice after lunch.
Noting the hour, I move that we rise, report progress and ask leave to sit again.
The committee rose at 11:49 a.m.
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