Supporting firearms violence prevention while protecting Indigenous hunting rights

Mar 12, 2021 | 42-1, Blog, Governance, Video | 0 comments

For decades Indigenous people in British Columbia have been arrested while undertaking their treaty-protected hunt. As a result they are forced into provincial courts to defend their long-established hunting rights. This has been the pattern, generation after generation.
 
Even when the courts decide in favour of Indigenous hunters, the provincial government demonstrates little respect for the effort, or the decisions, and continue to force Indigenous hunters into the courts.
 
Bill 4 – The Firearms Violence Prevention Act – is new legislation to address increasing gun violence in British Columbia. As Minister Mike Farnworth states, one of the goals of the legislation is to increase safety. As I articulate in my questioning of Minister Farnworth, many of the Wildlife Act charges against Indigenous hunters are charges of hunting unsafely.
 
In addition, clause 5 of Bill 4 explicitly restricts hunting from a vehicle or boat. This clause in direct contradiction of the Supreme Court of Canada 2006 decision in R. v Morris. I raise these issues with Minister Farnworth out of fear that Indigenous hunters who are arrested under Wildlife Act violations will now also be vulnerable to charges under this new legislation.
 
In my questioning of Minister Farnworth at Committee stage of Bill 4 I ask whether he and his Ministry undertook consultation of the appropriate Indigenous nations with respect to the potential impact on their treaty-protected hunting rights.
 
Further, when Minister Farnworth highlights that nothing in Bill 4 trumps treaties with Indigenous people, I argue that it is not appropriate to move ahead with passing the Bill prior to proper consultation as was committed by his government through the Declaration on Rights of Indigenous Peoples Act. And, I point out that with so much evidence of the province overstepping its jurisdiction, his words are of little comfort. The comfort only comes from clarity in the legislation.
 
At the end of this exchange Minister Farnworth agrees to pause clause 5 of the Bill and to look into this issue further.

[Transcript]

A. Olsen: I just have a series of questions here with respect to Indigenous hunting rights. In the late 1990s, Ivan Morris and Carl Olsen were “arrested and charged with several offences under the British Columbia Wildlife Act, including hunting wildlife with a firearm during prohibited hours, hunting by the use or aid of a light or illuminating device, and hunting without reasonable consideration for lives, safety and property.” That’s section 29. That’s what they were charged under.

As a matter of fact, the Morris case was one where they were hunting from a motor vehicle. Crown argued that this was inherently unsafe. But nothing they did was unsafe, and this was actually fought by the province all the way to the Supreme Court, where it was found that they were not hunting unsafely, the very issue here in section 5.

I just want to ask this question. Has the minister consulted with the appropriate Douglas treaty and Treaty 8 First Nations on the impact of section 5 on the treaty-protected rights, as successfully defended in the Supreme Court of Canada.

Hon. M. Farnworth: In answer to your question, we are very much aware of those treaty rights and obligations. There will be, continuing in the development of these regulations, further consultation with First Nations around this and if there need to be and there is the ability to do exemptions under this. We will ensure that if an exemption is required to ensure that those rights are protected, that one will be put in place.

A. Olsen: As my line of questioning unfolds, I think what I would like to be very clear on is that there’s a strong differentiation between what is written in the legislation and then what is regulated. I think that what’s written in the legislation is actually very dangerous when it comes to those treaty rights.

An excerpt from the R. v. Morris Supreme Court of Canada decision. “The Tsartlip’s right to hunt at night with the aid of illuminating devices is protected by the North Saanich treaty. The historical context indicates that the parties intended the treaty to include the full panoply of hunting practices in which the Tsartlip people had engaged before they agreed to relinquish control over their lands. One of those practices was night hunting and, as the trial judge acknowledged, night hunting by the Tsartlip includes and always has included night hunting with the aid of illuminating devices” — including from a vehicle. That last part was what I have added.

Even on a literal construction, the language of the treaty supports the view that the right to hunt “as formerly” means the right to hunt according to the methods used by the Tsartlip at the time of and before the treaty. The right of the Tsartlip to hunt at night with illuminating devices has, of necessity, evolved from its pre-treaty tools to its concurrent implements — the use of guns, spotlights and motor vehicles — and reflects the current state of the evolution of the Tsartlip’s historic hunting practices.

Did the minister consult with Indigenous nations, including the Tsartlip First Nation, the Saanich nations — the four nations — the Douglas treaty nations or the Treaty 8 nations.

[3:05 p.m.]

Hon. M. Farnworth: In answer to your question to the specific groups you named, no. The consultation was done with the general First Nations leadership groups within the province. What I can also tell you is that this particular section is not a new section. It is replacing section 9 of the old Firearms Act. So it is not new. It is just replacing what is already in existence. As I said, we fully understand the treaty obligations that the province is required to honour. If it is required for there to be an exemption, we most certainly will be doing that. This piece of legislation is intended to put in place the regulatory framework, and we’ve made that commitment that we will do just that.

A. Olsen: In light of the declaration…. And I thank the minister for acknowledging that the government understands its obligations under the treaty. However, the actions of the government have, over the last decade or so and arguably the last couple of decades, three decades maybe, since Morris and Olsen were first picked up in the 1990s, arrested on wildlife charges…. The actions of this government have not demonstrated that they’re prepared to do anything about the information that they have — literally have sat on a 2006 Supreme Court case for almost 15 years.

In light of the Declaration on the Rights of Indigenous Peoples Act and the minister’s admission that he understands the clear impact of this potential on Indigenous Nations, in addition to the fact that there was a commitment under the DRIPA that all new acts and even acts that were currently existing…. So the fact that — to the minister’s initial response — this is replacing law that already was in existence, either way there was a commitment from this government to engage Indigenous nations that are impacted by these laws.

If the government does know that the Tsartlip in particular but the W̱SÁNEĆ in total and then, as well, the Douglas treaty, as a group of treaty nations, including the Treaty 8, who also have got similar language in their treaty…. What did the minister use to determine that consultation at the legislative development stage was not needed?

[3:10 p.m.]

Hon. M. Farnworth: So, in answer to your question, at the consultation stage, the groups and organizations who were contacted in terms of being consulted with, were the B.C. Assembly of First Nations, the First Nations Summit, the Union of B.C. Indian Chiefs, Métis Nation , modern treaty First Nations and the Nisga’a Nation. Comments were received from Indigenous treaty nations. The Nisga’a Nations were fully considered during the development of this bill.

The other point that I would make, as I said, consultation continues to be ongoing in terms of the development of the regulations. This bill will not be implemented until those consultations are completed.

A. Olsen: Thank you. I should have started, but I will kind of now start by saying that I agree with the premise of this bill and the name of this bill, the Firearm Violence Prevention Act.

I think it’s important to acknowledge that the arguments that I’m making here today, or the questions that I’m asking the government today, are in the framework that I support the government’s intentions to diminish the amount of firearm violence in our province. Now, part of the challenge is, under the charges that W̱SÁNEĆ people in particular, but Douglas treaty Indigenous people in general, have been charged with, they’ve been, at their heart, safety-related matters. The conservation office have arrested hunters, including Morris and Olsen — and Sampson, now, in 2016 — based on safety.

They’ve actually unsuccessfully argued to the Supreme Court that there was an inherent unsafe aspect of the Tsartlip hunt or the Saanich hunt. I’m going to quote the decision of the Supreme Court here:

“However, it is acknowledged that it could not have been within the common intention of the parties that the Tsartlip would be granted a right to hunt dangerously, since no treaty confers its beneficiaries a right to put human lives in danger. This is confirmed by the language of the treaty itself, which restricts hunting to ‘unoccupied lands,’ away from any town or settlement. Since British Columbia is a very large province, it cannot plausibly be said that a night hunt with illumination is unsafe everywhere and in all circumstances, even within the treaty area at issue in this case. Accordingly, while section 29 of the Wildlife Act, which prohibits hunting or trapping, ‘without reasonable consideration for the lives, safety, or property of other persons,’ is a limit that does not impair the treaty rights of Aboriginal hunters and trappers, which apply without exception to the whole province, overbroad and infringe on the treaty right to hunt. Something less than an absolute prohibition on night hunting can address the concern for safety.”

So I want to point out that in the… And I think that the language of this decision is that it was found, the safety — that the Tsartlip had a right to create laws over their hunting and that there has never been an inherent lack of safety around the traditional hunting practises of the Saanich. So, there is a troubling matter here that needs to be exposed, because the reality of it is that for a very long time, this provincial government has been trying to derogate those treaty hunting rights. It could very easily be seen…. And in fact, I’m very concerned about the impact of the specific language of this clause in the legislation.

The minister continues to point out that this will be done through regulation. But what’s in the legislation is really important, because the regulations can change. We’ve seen regulation change. Any government, any time, that has its mind to it, can change the regulation. We’re in here debating this legislation. It is a slower process and requires this back and forth between the minister and members of the opposition to ask questions.

[3:15 p.m.]

This is an appropriate place for the consultation to have been done in advance of, not after, this legislation is passed. There have been 40 years of jurisprudence clearly stating the province does not have jurisdiction in this area around the federally protected rights to hunt. Yet we see in section 5 that they are limiting…. The provincial government is attempting to overstep, when it comes to Indigenous hunting rights, into an area that, in fact, they’ve been arguing, in that 40 years of jurisprudence, that they want the authority to overstep. They’re actually making that overstep in this law.

What’s really, really challenging…. And I’ve got a long quote here from the decision that talks about the fact that in section 88 of the Indian Act, it cannot be used to incorporate into federal law provincial laws that conflict with the terms of any treaty. The provinces may regulate treaty rights under certain circumstances.

What we have here is that we have a situation where section 5 is overstepping into an area. As a lawyer who’s argued this has pointed out to me, this really feels like an attempt to slip through the back door, where going through the front door has failed.

Did the minister or ministry staff review case law and acknowledge the limitations of provincial law in the context of federal jurisdiction, when it comes to the treaty-protected rights of the Tsartlip and others in the development of this bill?

Hon. M. Farnworth: I appreciate the questions from my colleague across the way. I just want to assure him. First off, the province is not seeking to do something through the back door.

[3:20 p.m.]

The province is fully cognizant of its obligations, both in terms of how legislation is developed and complying with UNDRIP and treaty obligations. I can tell you that the issues that he’s raised were considered in the development of this legislation. That’s why that consultation and the groups that I listed did, in fact, take place.

The question and the concerns that the member has were not concerns that were raised back to us. But what I am telling the member is this: we have done consultation. I have made the commitment that those consultations are going to continue, because we want to make sure that what we put in place is done correctly, is done properly and recognizes that rights around hunting exist. They have been established in the courts. We are not going to impinge on that or try to impinge on that by doing something through the back door. As I said, until this is complete, that will not be implemented.

A. Olsen: I think it’s important to, I think, paint the picture of the potential impact of this. Carl Olsen is my father. I know this case really well. He reminds me of it often, and so he should. This charge, that he successfully fought, took ten years of his life. It’s been 15 years, almost, since the decision was passed down, yet nothing of consequence has happened.

If Morris and Olsen Jr. — if I and my cousin — are out hunting and we get picked up and this law is passed, there is a decision point that could be made where we don’t then get charged under the Wildlife Act necessarily, we get charged under this act. So what is solely a hunting case, which is argued to the Supreme Court of Canada about hunting, now becomes what looks more like a Criminal Code charge under the Firearm Violence Prevention Act, section 5, if it passes — or clause 5, as we’re debating it now.

There is now this new, more robust law that then…. And, I should remind, the point has always been to undermine and erode those hunting rights. The province said as much, often as much, in the Morris-Olsen case. When the judge asked the Crown what their intention was with the fishing rights — my dad remembers this clearly, and he articulates it to me clearly — the province said they wanted to get rid of those too. So maybe they do. Maybe the conservation officer does have to charge us under a hunting violation.

However, the question is why are Tsartlip members and W̱SÁNEĆ members continually…? If the minister’s word is that the Crown fully understands its obligations under the treaty, why is Sampson still sitting in front of the courts today? Yet another W̱SÁNEĆ member being picked up on yet another hunting case, questions about their character and their integrity yet again being put before the people, so that then the Crown can yet again try to fight and undermine and erode the hunting rights of the W̱SÁNEĆ people.

Now, I can take the minister at his word. We’ve spent 3½ years working alongside each other on this. It doesn’t extend much past me, because there has been very little demonstration by the province of a willingness to act. In fact, I have in front of me here a letter that was sent as recently as February 24, 2001, to Minister Rankin, Minister Conroy and Minister Eby from Chief Don Tom of Tsartlip, highlighting a long case history starting in 1859.

[3:25 p.m.]

It was talking about 1852, seven years before the first wildlife act; Governor Douglas, the representative of this crown that we wear on our buttons; talking about a 1914 case from Edward Jim, talking about a 1916 case from Gus Morris. A 1965 case from White and Bob, that landmark case that changed the entire world here in Canada; talking about section 88 of the Indian Act; talking about 1989 and the Saanichton Bay Marina case that the provincial government lost in the British Columbia Court of Appeal; talking about Dr. Barbara Lane in the Bartleman decision, where the court established that the Saanich People’s hunting areas are far greater than just W̱SÁNEĆ, within just Saanich; talking about section 35; then finally getting to the Morris-Olsen case, talking about the acquittal of the court; and then talking about the Sampson case. So there is a long history of cases with the Tsartlip.

I think the minister has to forgive the Saanich — the W̱SÁNEĆ — the Tsartlip for…. When the minister says we’re going to continue this consultation after the legislation is passed, after all the members of this place have demonstrated their support for this bill, the Saanich, the Tsartlip are just going to have to trust this government to reflect the rights — that the provincial government isn’t trying to overstep its right here, where it has been clearly defined that the Tsartlip have a right to hunt from a vehicle. In fact, our traditional hunt was from the bow of a boat, using pitch lanterns. That was….

In this letter, the question is asked: why is the province continuing to pursue…? If the province does know, as the minister said, why is the province continuing to pursue the prosecution of Jonathan Sampson? Is the province willing to end the prosecution and explore the other options contemplated by the province’s legislative commitment — the Declaration on the Rights of Indigenous Peoples Act — in reaching a co-jurisdiction agreement, building mechanisms for sharing information, designing protocols to avoid and resolve conflicts as they arise and clarifying jurisdictional space the province will vacate over treaty rights?

These court cases have all along identified the fact that there is co-jurisdiction in this area. Yet the province, in this bill, is operating and acting like it has the only jurisdiction. The letter from Minister Eby, on behalf of the government, in response was: “It’s before the courts.” Of course it’s before the courts, because this government and this province continue to arrest treaty-protected Indigenous people for undertaking their treaty right.

So you have to…. I think the minister has to recognize how flat the response is, how flat it falls with people who have been fighting for generations to protect their treaty rights to say: “Oh, the consultation will continue.” Yet this government, the minister, the ministry did not actually directly consult — I did confirm this morning — the Indigenous nation whose members continually get picked up, arrested, whose names continually get dragged out there, who continually lose a decade of their life fighting the Crown, who’s trying to overstep its bounds.

So to the minister, can he see the potential threat to a W̱SÁNEĆ person who now is facing not only wildlife charges but also charges under section 5 of the Firearm Violence Prevention Act?

[3:30 p.m.]

[S. Chandra Herbert in the chair.]

Hon. M. Farnworth: I appreciate the member’s questioning in this. I want to make it clear, as I said a few moments ago. This section is replacing an existing section in the existing legislation. So the issue that the member raises, that he says is the problem, could it, in fact…. Those charges could have been previously laid under this section that he is talking about in those cases. But the fact is that they weren’t.

This piece of legislation is not hunting legislation. It is dealing with gangs and firearms and firearm safety. That is its purpose and intent. As the member…. Treaty rights that have also been decided by the court and court cases, and have been upheld in court cases, will trump this legislation. As I said, there’s no intent to do something through the back door.

In terms of consultation…. One of the reasons why I’ve said that that consultation will continue is to make sure that we are not infringing on those rights. But the other advantage, too — what will also happen — is that through court cases…. I understand that we want to get away from the court case process. But the fact is that there are court cases that evolve rights over time as well — that the regulatory framework has the ability to be flexible and to adapt extremely quickly to changes that may be necessary. But what I made clear is that the consultation will continue.

The member has indicated, from his perspective…. The nation that he has been talking about…. That consultation is crucial, and that will continue. That is going to shape if, for example, exemptions are necessary or if there are issues in the framework that need to be in place. Then that will, in fact, happen.

A. Olsen: Thank you, Mr. Speaker. Good to see you.

I have just been sent section 9, as the minister noted, of the Firearms Act and acknowledge that it was there before. However, we are drafting a new piece of legislation. This is now going to be put into yet another piece of legislation.

This is the opportunity that we have to have done this work in advance — post consultation or consultation in midstream. Once the members of this place — and presumably the majority there — have voted in favour of this bill, this will be the framework that that conversation happens in.

[3:35 p.m.]

What I’m attempting to inform, in this decision and in this process today, is that we have an opportunity, before we codify this in legislation, to have had that consultation, and it didn’t happen. That was the commitment. The commitment wasn’t to do it after the fact — not to do it later.

I think that what’s important is that the perspective of the Chief, in the letter that was written and responded to, actually, by the government just today, was a recognition and acknowledgment that the behaviour of this institution, the behaviour of this provincial government, has been to establish — or reinvigorate, as the language says — the provincial jurisdiction over hunting rights of the W̱SÁNEĆ people, of the Tsartlip, claiming justification jurisdiction to interfere with our, with their, including mine, treaty and hunting rights.

Wildlife officers have been out arresting Tsartlip people, W̱SÁNEĆ people, and the court cases that the minister talks about as a remedy are not a remedy at all. They’re soul-destroying. They require an incredible amount of resources from a people that don’t have an incredible amount of resources to fight an institution that has all the resources in the world that it wants. That’s not fair.

That’s why this part of the process needs to be a good one. That’s why we made the commitment in the DRIPA to do this work in advance of, so that we could then not have to be in court expending resources that would be better expended on health care and on education and on social development and on economic development and all those things.

Instead, where are our resources going? Our resources are going to defend our people who have been wrongly arrested for violations of an act that’s not applicable to them. Now we’re in the process of adding another one or, to change the language, renewing another one. We’ve not done a good job of understanding that this is actually going to….

As the member for Prince George–Mackenzie pointed out, the hunting community in general has shown concerns about this. However, for the Indigenous hunting community, who have a treaty-protected right, this is going to disproportionately impact them. I am somewhat dismayed. If the minister’s comments that they fully understand the impact that this has on the Tsartlip and they’re fully aware of the court cases and the jurisprudence around this from the Tsartlip…. To have the Chief tell me this morning that, no, they’ve not been consulted directly on this….

Tsartlip continues to show up in the Supreme Court of Canada documents. To just assume that this is not going to impact them because it was a clause or a section in a piece of legislation that currently existed — I find it really troubling. Then, when the First Nation reaches out to say, “Hey, we need to talk about those hunting rights,” the response from the Attorney General is: “It’s before the courts, so we can’t talk about it.”

What the Tsartlip and what the Saanich have been trying to accomplish with this provincial government is to have a discussion about co-jurisdiction. With that, I think the only remedy for this that could strike the level of confidence that’s necessary is for the minister to amend this section to be very clear in the legislation that this does not derogate or abrogate any treaty right.

Is the minister prepared to do that in the legislation?

[3:40 p.m.]

Hon. M. Farnworth: As I said a moment ago, treaty rights trump this legislation. It is in the existing legislation. It’s not new. It’s going into this new act. We are dealing through regulation any issues that may arise, that need to be addressed.

So at this point, I would say that is the approach that we’ve taken. It is the approach that we’ve taken through the consultation process that we did. I understand the member’s concern and about his specific nation. But as I said earlier, and I’ll just reiterate, when this legislation was developed we did go through Indigenous leadership organizations. As I said, they were the B.C. Assembly of First Nations, the First Nations Summit, the Union of B.C. Indian Chiefs, Métis Nation B.C. All of whom share those same concerns around issues, around rights when it comes to hunting.

As well as the treaty First Nations, the Nisga’a Nation. They all have that same interest around their hunting rights. We’ve made it clear that we will continue, that the work that was already done, that their work will also continue in ensuring that the obligations we have a responsibility to uphold are, in fact, upheld. And that the primary purpose of this bill has been regulatory. So that’s the approach that we’ve been taking.

But I am mindful of the member’s comments. I’m mindful of his concerns. I will follow up with him on them.

A. Olsen: I’m very troubled that the minister continues to use the defence of treaty rights in court as a remedy, when we have a remedy in front of us that is much cleaner, requires far less of an individual’s soul to be destroyed in the process, that requires far less resources from an Indigenous nation to be expended to defend those rights.

It’s troubling to me that after reading out the number of times that our relatives have been arrested and hauled before the courts to defend those treaty rights, only for the next generation to have their names added to that. Right. White and Bob, Morris, Sampson, Olsen and Morris, Bartleman. Every generation has its defender of the treaty rights.

The minister is essentially saying that the next generation after me, after us will also have to have their defender of the treaty rights. When the minister could put into this act — either at this clause here, clause 5 — a note that this does not derogate the treaty rights of hunting. And I have an amendment. Or an amendment at section 10 to say that nothing here abrogates or derogates the rights of Indigenous people.

We could do that work here today. We could make this clean and clear, and we could ensure that as far as this act goes…. We still have a lot of work to do in the renewal of the Wildlife Act, but we could ensure that this act doesn’t abrogate or derogate the hunting rights and to ensure that we are able to achieve what the minister wants to achieve.

[3:45 p.m.]

I agree, which is that if this is about gun violence and gang violence in British Columbia, I just am not understanding what the hesitation is or what the holdback is in putting in a clause, in taking a pause here on this particular clause and putting in place the language in the legislation, at the time at which we’re debating it, so it’s enshrined in legislation — that protection.

This government, previous governments, the whole government institution has a long way to go to gain the trust and to earn the trust of Indigenous people. We just started in 2019, and this would be a dramatic step.

I can tell you that there’s a lot of concern that’s being sent to me about yet another act that we may have to defend ourselves against in the future. It’s now being what’s debated.

I ask the minister again. Will he pause at this moment, with this clause, and do the work that was needed to be done in advance — not after the fact — with the people who have been most adversely impacted by this, which his government acknowledges they’re aware of, which they’ve received a letter on and which we currently have a member before the courts on? This generation’s Morris-Olsen. This generation’s White-Bob. This generation’s Bartleman. This generation’s Morris. This generation’s Jim.

Why do we have to keep doing this? Why can we not do this work appropriately, as was committed in the Declaration on the Rights of Indigenous Peoples Act? What is the hesitation on behalf of the minister to do this work up front and now, recognizing that this actually has a potential devastating impact on Indigenous people? Yet we could achieve what the minister wants to achieve, in addition to clarifying this very important point on behalf of Indigenous people, who continually are getting dragged in front of the courts to expend a huge amount of resources to defend themselves, even after winning in the Supreme Court of Canada?

[3:50 p.m.]

Hon. M. Farnworth: I guess what I can tell the member is what I’ve been saying. Look, this legislation has been developed in the context of the existing legislation, as it relates to this section. This section is not new. It’s not being used to do anything backdoor. It’s not going to come into force at the earliest until spring of 2022, which allows, as I have said, the time for additional consultation to take place around any issues that may arise. That’s the process that gives us, I think, the greatest flexibility to address issues that need to be dealt with.

The reality is, in the development of this, as I’ve already stated, that we have gone out and met — I’ve listed them for the member now — all the different groups and leadership groups, nations, about this legislation. I think the path that we have taken and are dealing with is the right approach. We will continue to, as I’ve said, ensure that it’s implemented in a way — not in a way — that respects the rights and treaty obligations that exist and will exist and will continue to exist. As I’ve said repeatedly, they trump this legislation. This legislation does not take away from them, nor does this legislation seek in any way to take away from those rights and treaty rights that exist and will continue to exist.

A. Olsen: Thank you to the minister for the response. Recognizing that this bill could be enacted now but wouldn’t be regulated until 2022, I’m not sure…. Well, this is eerily reminiscent of previous conversations that we’ve had around this, which is around the fact that I, as a legislator — and I think all 87 of my colleagues in this place — need to be put on notice here that voting in favour of this now is moving forward a process that the previous parliament agreed we wouldn’t do any more, agreed that we wouldn’t do consultation after the fact or consultation….

[3:55 p.m.]

It has to be acknowledged that the discussion about the regulations is substantially different than the discussion about the legislation, because had that been a robust conversation with our Chief, with our legal advisers in the room of the W̱SÁNEĆ, of the W̱SÁNEĆ leadership council, of the Tsartlip Chief, then they could have, at that time, acknowledged the fact that there is an increased recognizing that this is not designed for hunting, that there is an act. But it could be used. I think that that is the most important aspect of this: because it hasn’t, doesn’t mean it won’t. That’s the threat to Indigenous people who have a treaty-protected hunting right.

The other threat to putting our head down and proceeding and passing this vote is there’s no way to unwind that once it’s in place. We then accept that the legislation, as it was voted on, is the legislation that we are regulating. Whereas, if we paused and had that conversation in a more thoughtful way, or the government had a thoughtful way….

I’m raising the fact that our Chief has told me he has not been consulted. I’m acknowledging the fact that the minister has said that he understands and that the government understands and recognizes. I am adding further emphasis to the fact that the process….

When the minister says that this legislation doesn’t trump treaty rights, he’s not acknowledging the incredible effort it takes to defend those treaty rights. That’s something that I have witnessed. That’s something that I know all too well. That’s something that our families in W̱SÁNEĆ know and understand: the amount of resources that it takes to defend our rights.

While the minister can stand here today in this House and say, “Don’t worry. It doesn’t trump it,” that doesn’t mean that one of our people can’t be picked up on a charge, and then their life spirals into an incredibly difficult decade of defending a right that the minister stood here today and told us all we acknowledge exists. But it requires a court process to defend and to win. And, might I add, when you do win –– like White and Bob, like Morris-Olsen, like Saanichton Bay Marina, like all the court cases that the government has on the record because my Chief wrote them about it in February –– it doesn’t matter because the government picks up the next guy, picks up the next hunter to start that process. The legal groundhog day starts all over again.

All of my colleagues here who are poised to vote in favour of this without the legislation should be on notice that it is in contravention to the commitment that we made to the DRIPA, to the Declaration on the Rights of Indigenous Peoples Act, where we said there’s going to be a new process for new legislation, and a new process for old legislation that’s being reviewed in this place.

It is on the record that the minister acknowledges that he understands the full context of just how involved Tsartlip, as an Indigenous Nation, and the W̱SÁNEĆ, as a collection of villages within the W̱SÁNEĆ Nation, are involved in this. Yet they’re not the names on the consultation. There was no consultation, even though Tsartlip continues to show up in the jurisprudence. They weren’t part of that consultation.

That must make everybody in this place feel really nervous about proceeding with this bill. Again, to point out, this is not about hunting, per se. That work is still to come. The impact of this, the firearms….

I have amendments in front of me. I’m prepared to amend this bill. However, I feel really uncomfortable doing it because in the process of the last four days, that’s not the appropriate amount of time to sit down and have a conversation. It shouldn’t be on me to have that consultation with the Indigenous Nation who has so often showed up in the jurisprudence, so much of whose money has been invested in defending their members.

[4:00 p.m.]

I don’t even know, I can’t even tell you, if this language is the language that’s appropriate. It’s the language that we were able to put together in the short notice of a few days here in this place.

Even it does disservice to the bigger conversation that needs to be had here. Do you amend clause 5? Or do you amend clause 10? I have amendments for both of those.

I think the prudent thing to do here is to pause. We’re here for a long time this spring and this summer. Pause. The minister can reach out to Chief Don Tom, who’s the Chief of Tsartlip but also has a leadership role in our province. Sit down with the lawyers. Have the conversation.

He may find out that this was a good process because they learned something. Might find out that nothing needs to be changed at all because the chief says that. But I can tell you right now that the text messages that I have and the conversations that I have are of a great deal of concern. That is not the appropriate kind of atmosphere to be pressing ahead and say: “Don’t worry. We’ll do it in regulation.” Because as we’ve seen, regulations can change with the stroke of a pen. Legislation takes an appropriate amount of time.

I’m really, really hesitant to put any amendments on the table in case I don’t get this legal language exactly right. Is it section 35 of the constitution? Is it the treaty-protected rights of the W̱SÁNEĆ? Is it treaty rights writ large across the province? I don’t know how, in this language that I have in front of me, to properly identify the protection that needs to be in place.

I just know that there’s a great deal of concern being raised to me that there is an increased vulnerability, and the people who will be disproportionately impacted by that are the people that have been defending themselves in the court when this province arrests them and drags them all the way to the Supreme Court of Canada generation after generation after generation. That should be enough to just press pause for a few minutes, to take a deep breath.

I ask all of my colleagues from all sides of the House: please, do not support moving this along until that important and good work is done.

I ask the minister one final time: will he pause this?

This is the best possible outcome, even if nothing comes of it. It is a few moments in time in this legislative precinct. It is a blip on the radar of this place, but it means a lot to the building of trust with Indigenous Nations in this province to say: “You know what? Your issues are as big as the issues that we have in this place as we’re making legislation.”

The important work of this place isn’t too great for an Indigenous Nation who has expended an incredible amount of resources to defend themselves, because it will cause no comfort to them to hear the minister say: “Oh, don’t worry, because this law doesn’t trump the treaty. The treaty still stands.”

Well, in order for the W̱SÁNEĆ people to defend themselves with the treaty, they’ve got to spend a decade in court. They’ve got to go to Ottawa.

Will we take a pause, take a breath? Will the minister commit to having that conversation, or do I have to put these less-than-perfect amendments on the table to continue this conversation and to try to slow this process down a little bit so that that conversation can be appropriately had with the appropriate chief?

[4:05 p.m.]

Hon. M. Farnworth: I appreciate the member’s comments and his concerns, but I want to make a couple things clear. As I’ve already said first off — this isn’t new. I stress that because the concerns that he has raised have not been done through this section, and they are not going to be done through this section. But I do appreciate the member’s concerns.

I’ve also outlined the consultation that has taken place and that during that consultation, those concerns were not raised. I’ve also outlined to him that it is the spring of 2022 when this legislation will be implemented and that on this section and on other sections, a regulatory process is, we think, the best way forward on this particular bill — because it is not a hunting bill. It is a firearms and a safety bill. It is not designed in any way, shape or form to take away from….

As I’ve said, treaty rights trump this. But having said that, and understanding the genuine concern that the member has, I am prepared, at this point, to stand this section down and to continue on with other sections of the bill. I am prepared at this point to do that, because I do understand what the member is saying and where he’s coming from. As I said, I want to assure him that there is nothing nefarious in this section. There’s nothing…. It’s not designed to…. But at this point, I will stand this section down, and then we can proceed to other sections.

A. Olsen: Thank you to the minister for that commitment and that show of good faith. I will just end this part of this debate on this section with the acknowledgment of where I started in my series of questions and in the information that I provided today.

Most of those recent arrests have been on safety-related charges, section 29 of the Wildlife Act. So part of the challenge is around gun safety. There has been a long history of jurisprudence around the inherent unsafe practices of the W̱SÁNEĆ hunt. The Supreme Court of Canada found that there is nothing inherently unsafe. In fact, there have been no incidents to date, thank goodness, about the W̱SÁNEĆ hunt.

Just as the minister pointed out that this this bill is about safety, this was one of the primary motivating forces behind me standing for so long on this section of the bill today — because our people are being picked up on safety-related issues. I’m wary of that.

Thank you for that. I appreciate the minister taking the time, and I certainly hope in the time that the section is stood down that the ministry reach out to the chiefs of the W̱SÁNEĆ nation and to the Douglas treaty nations, for that matter, all 14 on Vancouver Island, and make sure that this bill reflects that proper consultation process. HÍSW̱ḴE SIÁM.

[4:10 p.m.]

The Chair: The offer has been made to have this section stood down. We can take further questions on this section, or we can deal with them later if members prefer. I’m willing to take questions now, but of course, the minister has offered that it be stood down until a later date.

P. Milobar: Just one or two questions. I appreciate that the section sounds like it’s going to be stood down, and I know another colleague has a few questions on this area as well.

Really, the concerns are that this is something we have seen unfold in this chamber, post the passing of UNDRIP. Now this will be the third time. Last session, we had Bill 17, and we had Bill 22, both of which — the complete bills — had to be withdrawn by government because it was found that they can’t consult properly. By their own admission, they didn’t consult properly. They withdrew the bills. In fact, that lack of consultation was then later used by the Premier as an excuse for the bills being pulled — was actually that they couldn’t get support with the Green Party and that we needed to have an election over that.

Now today we’re hearing that there was some consultation. By the minister’s answers, it doesn’t sound like it was adequate consultation, because the minister has even acknowledged that there needs to be more consultation once this bill is passed. “Just trust me. We’ll take care of it.”

The problem is — and the member previous is right — that that is not what Indigenous leaders were expecting with UNDRIP. They weren’t expecting that government would continue on with passing bills and say: “We’ll talk to you about it later. But once everything’s kind of in law, we’ll play with a little bit of regulation on the edges, and we’ll see where we can proceed with that.” It’s not acceptable for a mining company to do that if they’re trying to get a permit. It certainly should not be acceptable for the government to try doing that when it comes to legislation, especially this fresh after the passing of UNDRIP.

The question I have to the minister around not just this section but the overall bill…. If there’s an acknowledgment that further consultation needs to be done so that it’s done in a proper way with this bill and sections of this bill — and sections within a bill all start to interconnect —why, if the government has already chosen to withdraw Bill 22 and Bill 17 previously, would this bill not just be withdrawn completely and put on hold until proper consultation has been done and attempted?

No one on our side is opposed to public safety, to cracking down on gangs, to making sure that police and enforcement have the tools they need and the legal system has the tools they need to keep the law-abiding citizens of our province safe and crack down on gangs. We’re not saying that at all. However, that doesn’t mean that legislation just gets to get rushed through without proper checks and balances and consultations done that this government actually put in place for new legislation.

So to the minister: if the minister is prepared to stand down section 5 for the time being, why will the minister not just stand down the entire bill and make sure proper consultations take place over the next few months? Provide that certainty to this chamber and to the public. Make sure that we can advance — in a proper, meaningful way — legislation under UNDRIP that still accomplishes the public safety goals that I think everyone shares in terms of restricting access to illegal firearms to gangs and providing police the tools to properly crack down on the illegal gun owners.

That’s ultimately, I think, what everyone wants to see happen. But we can’t turn a blind eye to the legislation that we all passed unanimously in this House around UNDRIP. Will the minister stand down the complete bill to make sure that the proper consultations are addressed and brought back forward so that we can ensure the safety of our citizens?

[4:15 p.m.]

Hon. M. Farnworth: I listened with interest to the comments from my colleague across the way. I’m just going to say this. I agree to stand the section down, because the member raised some particular concerns that I believe we can address. We have a difference of opinion at this point on those concerns, in terms of the approach. But in terms of standing down what is otherwise, I think, a very strong bill that all members of this House should support…. We have no intention of standing down a bill.

There is no intention of standing down a bill right now that will make it illegal to have hidden compartments in vehicles. We are not going to stand down a bill that bans or that makes it illegal to walk into a hospital or a place or worship with a shotgun. The member may think that we need to consult on that. We do not need to consult on that anymore.

We do not need to consult, in terms of when you walk into a shooting range, should you have to register and sign your name on a form and show some identification? There’s no need for consultation anymore on that. There is no need to deny the police the ability to deal with those who carry fake firearms that are made to look real and too often result in a tragic circumstance that could be avoided.

They had 16 years to do something like that. After 16 years…. I will give my current critic credit, which I did during the second reading debate, that he commissioned a report that landed on my desk. I said, “These make good recommendations and worked with some of the best minds in policing to put them into legislation. We do not need to wait any further to deal with that.

What I have said and I think is the appropriate thing to do is that there are some questions around this section that my colleague across the way feels very strongly about. I said I’m prepared to look at that. I may come back and say: “I looked at them, and we’re not going to change direction.” But I understand where he’s coming from. I understand what he was talking about, and I said I am prepared to look at that. But I am not prepared to — what in my view is, in essence, a stunt — stand down an entire piece of legislation. That is unnecessary.

This House is dealing in committee stage with legislation on a clause-by-clause basis, as it always does. Sometimes on those clauses — many times — there is agreement, and other times there are disagreements. There may be amendments made. From time to time the minister has the prerogative to say: “You know what? There’s an issue here that’s been raised, and I’d like to look a little closer, and so I’m standing down a section.” That is the appropriate thing to do. But it does not mean to say that the rest of the bill does not continue. We continue on the other clauses and all the parts in that bill that will make that bill whole.

So no, we are not standing down the bill. But we are, as I said, prepared at this time to look at that section 5 and some of those issues the member raised.

Clause 5 stood down.

The Chair: Thank you, Minister.

So clause 5 has been postponed. We will come back to that before we get to the end of the bill reading. We are now on clause 6, Members, so I’ll draw your attention to clause 6, as clause 5 has been postponed, or stood down, as the terminology has it.

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  1. Amendments to Bill 4 address concerns about Indigenous hunting rights - Adam Olsen. MLA for Saanich North and the Islands - […] the debate on Clause 5 of Bill 4, the Firearms Violence Prevention Act, I raised numerous concerns with the…

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