Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills — Issue No. 5

SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

Present: John Martin, MLA (Chair); Leonard Eugene Krog, MLA (Deputy Chair); Harry Bains, MLA; Dr. Doug Bing, MLA; Eric Foster, MLA; Gary Holman, MLA; Vicki Huntington, MLA; Don McRae, MLA; Sam Sullivan, MLA; Jackie Tegart, MLA

2. The following witnesses appeared before the Committee and answered questions regarding the revision to the Municipal Replotting Act pursuant to the Statute Revision Act:

3. Resolved, that pursuant to section 4 of the Statute Revision Act [RSBC 1996] Chapter 440, the Committee approve the revision of the Municipal Replotting Act and recommend that it be brought into force and further, that the Committee authorize the Chair to endorse the Committee’s approval on the title page of the Municipal Replotting Act Statute Revision. (Don McRae, MLA)

4. Resolved, that the recommendation of the Committee be transmitted to the Lieutenant Governor and further, that the recommendation form the basis of the Committee’s report to the House which the Chair shall present to the House at the earliest opportunity. (Don McRae, MLA)

The following electronic version is for informational purposes only.
The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS


CONTENTS
Page
Revision to Municipal Replotting Act	29
J. Erasmus
A. Fyfe

J. Martin (Chair): Good afternoon. We’ll call to order the meeting of the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills. Thank you so much for everybody being able to make accommodation for this time slot. It was put together on rather short notice, so it’s much appreciated that we’re able to be here this afternoon.

We do have a couple of guests. We have Janet Erasmus from the Ministry of Justice and Alexander Fyfe, also from the Ministry of Justice. Good afternoon. Thank you for being here.

Okay, so there’s the overview of what we’re doing in the binder. I think most people have a passing idea of what exactly we’re tasked with this afternoon, but perhaps, Janet, you could walk us through what we’re facing.

J. Erasmus: Thank you. Good afternoon to all of the hon. members. I’m so glad to be here on behalf of the office of legislative counsel to introduce you to yet another statute revision. This will be the Municipal Replotting Act. Now, it used to be called municipal schemes, replotting schemes. My colleague Alex, who’s the lead reviser on this, will explain more.

This revision is a follow on to the Local Government Act revision that was brought to the committee last December. That was a revision of the largest act on the statute book. That revision ran to almost 500 pages. You’re probably pleased to notice that the one today is closer to 20 pages.

I’d like to introduce two people who are attending with us but who won’t be speaking. One of them is Amanda Goertz, who is our revision coordinator in the office of legislative counsel. She puts the materials together for legislative counsel to work on it. She’s an extraordinary editor. She’s the creator of the tables of concordance so that users can track between…. Where did it come from in the revision, and where did it go to with the revision? She does the general revision process and so much more. I’m so grateful for her.

Sabba Sall is from the Ministry of Community, Sport and Cultural Development. He’s the acting manager for legislation right now. He has been working with Alex on developing the revision.

My plan, as the Chair suggested, will be a brief overview of what statute revision is generally. Then Alex will be able to do more detail for you. There are a number of people who weren’t here in December, so I’ll do a little walk-through on it.

There are two types of statute revisions. At this point, we could start talking about the old type and the new type. The historical one was general revisions, and that was a revision of the entire statute book at that point in time in British Columbia. I don’t know if you’ve had a chance to look at them, but I actually brought the one that sits by my desk in my office. These books are in the office I have because I’m in there really often when I’m working on a statute revision. It’s the full set.

You can see that, over time, there’s been a small run of the acts of the Legislative Assembly, session by session, and then a revision and then a short little piece and a revision. The first revision was in 1897. The most recent one was down here in 1996. Can you see that entire huge string of annual volumes that follow that? We’re more than double the size of changes to the statute book since the most recent general revision.

In 1992, when the office of legislative counsel was working on the 1996 statute revision — it took seven years — we were able to put forward a new Statute Revision Act that proposed, and other provinces are now adopting this, the ability to do revisions of individual acts. We call them limited revisions.

Instead of trying to do the entire statute book — at this point, my guess would be that it would take more than ten years to do it, if we did the whole thing — we can target the acts that are in the most need of revision, the ones that have been subject to the most change and the ones that have the most public use. The Local Government Act revision in December was our first one. This is a follow-up.

Those are statute revisions. They’ve been part of our legislative process since the very start of the province of British Columbia. But why do them? The short answer is that statute revision allows an older act to be renumbered, reorganized, restated as if it were a brand-new act, all for the purpose of improving readability — usable and understandable legislation.

Why are they needed? Two big reasons. The first one is: acts get amended over time. That changes the original act. There are additions, and those get decimal number sections. Sometimes they get decimal number sections up to section 114.301 — quite crazy. They create gaps. We do not fill in so that an act can be tracked by lawyers over time to determine what the state of the law was at a particular time. If a provision is repealed, something doesn’t swap in that’s different. So there are all those changes.

The second thing is that legislative drafting style has changed over time. I’d say our current drafting is very close to what we were doing in 1996. But there are other acts. There are acts that really haven’t been given a deep revision for style that go back…. Yours goes back to….

J. Erasmus: It’s 1928. It’s been a while. The way they wrote back then is older.

As I’ve been known to explain, if you think about it in terms of punctuation, commas were cheap back then. Semicolons — you could get quite a few. Decimals must have been very expensive. We would have a block of text that was almost 200 words without a period. They did massive things. That would not be our current drafting style, which I hope you appreciate, from looking at the way bills are drafted. You can actually see the elements in it.

We changed style. The goal of this — and this has been the goal of the office of legislative counsel from before mission statements and such things were in order — is to create a piece of legislation to give legal effect to government policy — we are government lawyers — in a form that clearly communicates that policy to the persons whose rights, duties and powers are affected by the legislation and for the persons responsible for administering it. Those were our two big target audiences.

As you listen to that goal, I hope you will consider, when you’re looking at bills before the House, that it is a goal and that achieving it is not always entirely possible when you’re dealing with complex legislation and really tight timelines. We want to do it, but perhaps we don’t always reach our goal.

The test for clear communication. It’s not just about plain language. It’s not about simple words at all. It’s: can readers find what they need and understand what they find as quickly as possible? That’s what the international plain language institute would articulate as what it means to have clear language.

We call statute revisions “cleaning up the statute book.” They are the legislative counsel equivalent of housecleaning. We can’t change the law. We can make it more readable, but we cannot change the legal effect.

If we were spring cleaning in the Household library…. I realize that when I say “Household library,” you’ll appreciate that I have a capital on “House” in this case. The Household library. We get everything dusted. The books are reorganized on the shelves. We can’t replace the furniture, but boy, we can polish the floors.

That’s where we are today. The process for a statute revision…. There’s more info on this in the general guide that’s in your materials. I’ll just go through a few sections in the Statute Revision Act.

Section 1 establishes a mandate for chief legislative counsel to prepare statute revisions, either the general revision — really unlikely to ever have one of those again — or limited revisions.

Section 2 is our authority for the revision changes. Many of them go back to 1923, even the ones that you might find astonishingly powerful. They make such alterations in an act’s language “as are requisite in order to preserve a uniform mode of expression.” Today we call that: alter language and punctuation to achieve a clear, consistent and gender-neutral style.

The 1923 act had authority to make minor amendments to bring out more clearly what is considered to have been the intention of the Legislature. Updated, it has barely changed: “make minor amendments to clarify the intent of the Legislature.” We exercise these powers very carefully. On every revision, there is a lead reviser — in this case, Mr. Fyfe — and a second reviser reviewing all the proposed changes. The responsible ministry is engaged in the process, with legislative counsel being quite clear that there aren’t any opportunities for fixes — no changes.

The draft revision is carefully edited, and tables of concordance are prepared. When that’s all ready, it’s ready for consideration, which takes us to section 3, where chief legislative counsel provides a copy of the revision to the Clerk of the assembly for examination by the designated committee. So we are here today.

Section 4. If the committee recommends that the revision be brought into force, the Lieutenant-Governor will direct that a copy of the revision is deposited with the Clerk. This official copy will be signed by Her Honour and by the Clerk. At this point, we now have a statute revision, and it will get a chapter number assigned. The Local Government Act revision, from December, was RSBC 2015, chapter 1. If this one is passed, it will be RSBC 2016, chapter 1 — a nice number.

With all that signing and deposit, we have a law, but it is not yet in force. Section 5 of the act provides for it to come into force by regulation of the LGIC. When brought into force, the Statute Revision Act, section 7, will say that all the pre-revision provisions that are included in the revision are repealed, but the revision is not to be read as new law. It’s just a consolidation, and then we have a lovely, clean act.

That was my short overview presentation. I could respond to any questions, if you have general questions, or we can move to Mr. Fyfe talking about the specific revision.

L. Krog (Deputy Chair): I’d be tempted to ask…. This consideration…. I mean, this is an aspect of law I wasn’t familiar with at all. I just wonder if I might ask MLA Huntington, who, I know, had a long career in local government, whether her municipality ever had to deal with this.

V. Huntington: No, I don’t believe so. Although, I’ve wondered…. Well, I’d better be quiet because I’m still not quite sure what it is.

Is the act itself to do with revamping subdivision schemes or parcels or even the letters patent? I wondered whether it’s being generated because of the treaty process.

A. Fyfe: I’m prepared to go into a fair bit of detail as to what municipal replotting involves.

A. Fyfe: Basically, the concept is a way of improving plans of subdivision that enables a municipality to produce a new plan of subdivision in which the former parcels are converted into new parcels under the new plan of subdivision.

The unique feature about replotting is that the ownership changes. The basic rule is that you need approval of 70 percent of the owners of the assessed land in the municipality to consent to it. If you reach that 70 percent threshold and the municipality decides to proceed with it, then, when the new plan of subdivision is registered in land titles, there’s a replotting scheme that’s filed with the registrar of land titles, and he transfers ownership from the former parcels to the new parcels.

A. Fyfe: Well, excellent questions. I’ll just back up for a second, if I may. I’d like to give credit to an MA thesis that was written in 1967 by Eric Tiessen of the University of British Columbia, who prepared his thesis on municipal replotting. The purpose of the thesis was to determine whether this tool, this technique, should be used and what its advantages and disadvantages are.

He concluded it was a valuable tool that municipalities should take more advantage of. So what I’m about to say is based largely on Mr. Tiessen’s analysis to explain where municipal replotting came from.

The basic idea is that…. Sometimes you get plans of subdivisions prepared without much recognition for the topography of the land. I think we’ve all seen these old plans which are basically just grids, rectangles, imposed on the land.

Then, when the surveyors would go out to put the pins in, they would discover that you’re on a mountainside or there’s a stream running through the properties or there are large rock formations that would really affect how you build. That’s one of the reasons. You could basically improve the plan of the subdivision, because the surveyor never actually looked at the land before he surveyed it.

This legislation was created in 1928, and you can imagine that in 1928 the planning principles that were in place were nothing compared to what modern municipalities would follow in improving a plan of subdivision. Often you would get a subdivision with very poor traffic patterns. You’d have very oddly shaped parcels. So to improve poor subdivisions, you could institute a useful replotting scheme.

Another potential reason for going with replotting is that if land use changes or the density of population changes, modern planning would say that we should redo the subdivision. The municipality can initiate it. If it’s approved, it’ll go ahead. The advantage is that you would have a modern plan of subdivision based on the best practices at the time of the replotting, and at the end of the process, the ownership would be completely transferred between the former parcels and the new parcels.

The encumbrances and charges from the old parcels would automatically be transferred to the new parcels. It’s a very efficient way of effecting the change of ownership and a brand-new subdivision plan.

E. Foster: I was in local government from 1985 to 2009. I’d never heard of this. When I open up on tab 4 and I see the headline saying “Replotting schemes,” it always makes me concerned. But as you explained it, I now…. We dealt with it all the time. I just didn’t know what it was called.

One of the things…. I don’t know if this is part of this act or not, but some years ago, there was a subdivision, a fairly large property. It was country residential zoning, a five-acre parcel. There was an allowance under some part of the act so that if you had 100 acres, you’d get 20 houses, but you didn’t have to put them in five-acre parcels. You could put a small group of houses on a flat spot, but you still couldn’t go over 20 houses on the 100 acres.

Could that be part of this? It was a good thing. Whoever did it, it was a good idea. Would this come under that type of thing? It did change the way the property was laid out.

A. Fyfe: Well, there are, basically, no limits on when it can be used. Primarily when there’s a need to change the boundaries — that’s basically the thrust behind it.

G. Holman: Two questions. Can the replotting involve a change in ownership from private to public or vice versa?

A. Fyfe: The short answer is yes. What happens is that all the highways, public areas, public parks, as well as all the private land…. Well, I’ll just step back. The municipality originally designates a replotting district, and all land within that replotting district is then subject to the replotting. At one point, the act describes it as…. It becomes a common mass. All the public land and all the private land just becomes one public mass, which is held by the municipality in trust for the subsequent owners.
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You could have a situation where, on a current plan of subdivision, there’s a highway, but in actual fact, the highway is somewhere else. The plan of subdivision would show the new location of the highway. Let’s say the new location was formerly privately owned lots. Well, what was formerly, in theory, public land with the private lots would be transformed into private land, and the public land, which appeared to be the highway, would become private land. So it is possible, yes.

G. Holman: In any case, any change in ownership can’t result in a change of value, and if there is a change in value, there either has to be compensation paid or moneys paid to reflect a higher value. But the bottom line is that whatever this thing does, you’re not changing the law nor the intent of the law.

That’s the bottom line. All you’re doing is making changes around, essentially, readability. Whatever the law does now — and we’ve got kind of a vague idea — you’re not changing that. This is only around readability and presentation and that kind of thing.

In relation to that, though, I would imagine that whether you’re actually changing the law is a pretty tricky issue, and I’m just interested in the review process. Is it all internal to the ministry and to government, or is there external review? What does that process look like? It seems to me that’s fundamental to what you’re doing here — whether or not you’re actually changing the law.

J. Erasmus: Legislative counsel are responsible for doing these revisions, and we take very seriously the constraint on not changing the law. There is a skill set in reading law to be able to write it and to interpret it. That’s what we do for our lives. We write law.

The process, really, always does involve two drafters. If one of us thinks that anything we’re doing is beyond…. Usually we specifically consult if there’s any change in language. I mean, if we split a long sentence so that it has three different sentences so you can actually read them now, we won’t specifically note it. But if we’re changing a word where nowadays…. If we have something that says “if the board thinks” or “if the board is of the view….” We’ll have one act: “If the board determines.” Like, there’ll be all sorts of variables.

Currently drafting style would be “if the board considers.” So we will go for consistency. But that will also be checked with the other drafter. If there’s anything larger, then there is deep thought about it.

No, we’re not changing the law. We’re very conscious of it. This isn’t an outside consultation process. We’re government lawyers. Our client is the government. Everything else is within confidentiality, and then we bring it out for the committee.

We usually do engage the ministry. For example, with the Local Government Act, the ministry worked with the Union of B.C. Municipalities and with the Local Government Management Association to have a consultation group that was under confidentiality but reviewed the proposed organization of the Local Government Act. In a big thing like that one, we would do it. We didn’t go outside for replotting.

The process here is to improve readability. This is a very old process that I understand has been used…. It’s not like the whole municipality would do it. They might choose a small area and redo a replotting for that, so this little area gets a better setup for the parcels so that the three owners there actually have better properties from the perspective of each of them.

G. Holman: I’m reminded of the old saying about people rising to their level of incompetence. I feel that today I’ve truly reached that point in my career. Honestly, we’re completely dependent on your advice around whether you’ve actually changed the intent of the law. So if anything goes wrong, I just want to make it clear that I will be blaming the staff. I would like that on the record. [Laughter.]

A. Fyfe: I just wanted, in a partial response, to indicate that in the course of the revision, we compiled a list of issues that were identified that raised legal concerns, interpretation issues, and that we concluded we did not have the authority to fix, so to speak, through the revision. Mr. Sall, the ministry, has that list, so it’s possible that in the future, they could come back to amend the act to fix the things that we did not think we had the authority to do under the Statute Revision Act.

H. Bains: Along with what Gary mentioned, without removing commas or adding periods, two lawyers normally have a different interpretation of the same thing. I think here you are actually changing how it’s written.

Have you had experience in the past where it became an argument between two competing parties saying that: “It must mean this, because there’s no comma here”? You could argue, “No, we didn’t change the intent,” but then that becomes the argument. What was the intent? Was that established before? You go back to that. I think Mr. Fyfe may have answered this question, but how do you resolve those issues? How many times did those issues come up, and what is the process?

You said that they just go back and make the changes to the original…. They bring the original text back. Is that what you do, then?

J. Erasmus: I don’t have the citation with me — drat. That’s lawyer-speak there, right?

We do have cases in British Columbia where after a statute revision, there was an issue as to what the law meant. We have very good cases in British Columbia
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where the Court of Appeal has said: “Statute revisions are not intended to change the effect, and they did not change the effect.” The courts will lean strongly to any implication that there has been a change. There’s that.

The second thing is: if it turned out that someone identifies that there is a problem with a revision change, the Statute Revision Act has some very special authority for a regulation to come in and amend the act to take it back to the original — if some unintended change was identified. After the 1996 revision — 15 volumes there — I think we wound up with three or four changes, and two of those were punctuation. Okay, it wasn’t the missing comma, it was some other punctuation mark that should have been different.

The number of the changes…. Our experience has been that, so far, we’ve had very few things that were not within authority. If we find one and are advised of it, it gets changed using the regulation amendment power.

H. Bains: I understand, on one side, the benefits of readability and making it easier. But on the other hand, you just mentioned that it does add cost and time. The arguments go before the judge, so the judge has to make a decision.

I’m just questioning the value of doing this. When you consider that even if, out of ten, there’re only, maybe, two cases that become an argument…. The judge has to make a ruling there was no intent of changing. Therefore, you rely back on the original intent. But it does become the issue, and it adds to the cost of the system and burdens the system as well.

J. Erasmus: If it winds up going to court, yes. If we’re advised in advance, it can be fixed. Fifteen volumes…. The probability of this is very low. What you have is the legal opinion of people who spend their lives worrying about statutory interpretation — that’s legislative counsel — that it hasn’t changed. That’s our goal, and we’re really clear on it.

The benefit of improving readability is huge. If you consider the Local Government Act, we looked at where regional districts previously had their provisions scattered across 14 parts and related sections were hundreds of sections away. For a regional district director to understand what their responsibility was, was massively difficult. They can now open the book and see “governance,” “financial planning,” and that’s the benefit of the revision.

D. Bing: I’m just admiring your volumes and volumes of statutes there. Has this been put on line? Do you now have the ability to look that up on your computers, or do you have to go to these volumes to do anything?

J. Erasmus: B.C. Laws, operated by the Queen's Printer…. As soon as the statute revision for the Local Government Act came into force, it was available to everyone on B.C. Laws. There was advance publication of the tables of concordance and everything by the ministry to make sure that the users would have access in advance.

They also put the committee presentation documents on the ministry website, so the public had it right away. So yes, it is — public law.

V. Huntington: You mentioned that, as the process changed, you were thus able to prioritize the pieces of legislation that you wanted to revise or do the statute revisions on. What triggers those priorities?

I can’t imagine the Municipal Replotting Act rose above all else. Was it triggered by the Local Government Act revisions? Was it triggered by something like the Miscellaneous Statutes Amendment Act, which was revising how the ALC will undertake exclusions now? It changes those types of boundaries quite significantly and in a very different way.

I wondered: is that one of the reasons this gets triggered and pushed to the top of the pile? Or do ministries say we’ve got a problem with an act? How do you determine what the priority is? Other than the Local Government Act, I can’t imagine people banging on your doors too much about this.

A. Fyfe: In this particular case, there’s a very specific answer to that question. Why did we choose the Municipal Replotting Act to be revised? The simple answer it completes the revision of the Local Government Act.

When the committee approved the revision of the Local Government Act in December of last year, it approved the revision of the whole of the act except for part 28: municipal replotting. The decision was made not to revise it at that time because it was not a good fit within general local government legislation. It was more of a transfer of ownership plan of subdivision subject matter.

When the revision was made, there was also an amendment to the remaining portion, or the old Local Government Act. The title was changed to the Municipal Replotting Act. The act that we are revising and presenting to you today is basically the remainder of the Local Government Act, with it’s title changed to Municipal Replotting Act.

A. Fyfe: If you were to go to the B.C. Laws website, click on Municipal Replotting Act, you get the site for the old Local Government Act. The old Local Government Act, before its revision, was comprised of 30 parts. What
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you’ll see on B.C. Laws is a reference to all the parts and a lot of individual sections. It’ll all say “repealed” or “revised.” It goes on for…. How many sections was Local Government?

A. Fyfe: When you click on B.C. Laws for municipal replotting, you get that list of 1,000 sections. They’re all basically blank, except for part 28. That’s just sitting on our books there, left over from the revision of Local Government.

With the approval of the revision of the Municipal Replotting Act, it essentially completes the revision of the old Local Government Act. That was the prime motivator for this revision.

K. Ryan-Lloyd (Deputy Clerk and Clerk of Committees): Good afternoon, Members. As was the practice last December, our office has prepared two motions for your consideration, which we will distribute now. The first, pursuant to the Statute Revision Act, provides formal approval by the committee of the revision of the Municipal Replotting Act and recommends that it be brought into force. Also, it authorizes the Chair to endorse the committee’s approval on the title page of the statute revision.

The second motion, which I’ll also circulate for your consideration, is that the recommendation of the committee be transmitted to Lieutenant-Governor, and further, that the recommendation form the basis of the committee’s report to the Legislature. The Chair will present the report of your committee at the earliest opportunity.

I will also note on that point that the Chair is also going to be presenting — as I understand, tomorrow — the other report of your committee on the Millar College of the Bible Act. You will recall your deliberations on that private bill not long ago.

J. Martin (Chair): Okay, there are two motions, if you’ve had a chance to take a look at them. Do we have a mover for the first one?

D. McRae: I move that pursuant to section 4 of the Statute Revision Act, c. 440, the committee approve the revision of the Municipal Replotting Act and recommend that it be brought into force; and further, that the committee authorize the Chair to endorse the committee’s approval on the title page of the Municipal Replotting Act statute revision.

D. McRae: I move that the recommendation of the committee be transmitted to the Lieutenant-Governor; and further, that the recommendation form the basis of the committee’s report to the House, which the Chair shall present to the House at the earliest opportunity.

Access to on-line versions of the report of proceedings (Hansard)
and webcasts of committee proceedings is available on the Internet.

Chair:	John Martin (Chilliwack BC Liberal)
Deputy Chair:	Leonard Eugene Krog (Nanaimo NDP)
Members:	Harry Bains (Surrey-Newton NDP)
	Dr. Doug Bing (Maple Ridge–Pitt Meadows BC Liberal)
	Eric Foster (Vernon-Monashee BC Liberal)
	Gary Holman (Saanich North and the Islands NDP)
	Vicki Huntington (Delta South Ind.)
	Don McRae (Comox Valley BC Liberal)
	Sam Sullivan (Vancouver–False Creek BC Liberal)
	Jackie Tegart (Fraser-Nicola BC Liberal)
Clerk:	Kate Ryan-Lloyd

REPORT OF PROCEEDINGS (Hansard)

SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS