1993 Legislative Session: 2nd Session, 35th Parliament HANSARD
The following electronic version is for informational purposes only. The printed version remains the official version.
(Hansard)
TUESDAY, JUNE 15, 1993
Afternoon Sitting
Volume 11, Number 5
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The House met at 2:05 p.m.
Hon. L. Boone: It gives me great pleasure to introduce to the House today somebody who was a co-worker with me, Marilyn Sadik, her husband Ihab Sadik and their son Karim. They're from Prince George. Would the House please make them welcome.
J. Weisgerber: It's a rare opportunity for me to introduce a constituent. It's an even greater pleasure when it's a friend. I'd ask you to join with me in giving a warm welcome to Mr. Rob Griffith of Dawson Creek.
G. Brewin: I would like to introduce to the House a very special delegation from the China Christian Council. Their Chinese leaders are Rev. Yang An Ding from the Shanghai Christian Council and Rev. Huang Wen Jun from the Hangzhou Christian Council. They are accompanied by professor emeritus of English Ms. Mo Ru Xi from the Nanjing Theological Seminary, plus two Canadians, Cynthia McLean and Wee-Chong Tan. Would the House please make them welcome.
N. Lortie: On behalf of my colleague the member for Surrey-Green Timbers, I'd like to inform the House that there are students visiting us today from Simon Cunningham Elementary School in Surrey. They are 80 grade 5 students; 40 of them are in the House right now, and 40 of them are on a tour and will be joining us shortly. They are accompanied by several adults and their teacher, Ms. B. Wallace. Would the House please make them welcome.
M. Lord: It's a pleasure to welcome four distinguished visitors from my riding of Comox Valley. With us today from the city of Courtenay is Mayor Ron Webber and city administrator John Wilson, and visiting from the town of Comox is Mayor Alicia Burns and administrator Helen Dale. Would members please make them welcome.
Hon. A. Edwards: At this time the Legislature has the great good luck to have the president of the Mining Association of B.C. drop in, look down and see how we're doing. I would like all of us today to welcome Gary Livingstone, who is in the gallery.
P. Ramsey: Joining us in the gallery today is George Davison. Mr. Davison is a colleague of mine at the College of New Caledonia in Prince George, where he instructs history. He has recently been elected as president of the College of New Caledonia faculty association for the coming year. Would the House please join me in making him welcome.
Hon. A. Charbonneau: I'd like to introduce a distinguished visitor from Kamloops, Dr. Alastair McLean. Dr. McLean was a longtime employee of Agriculture Canada and is currently a member of the board of the University College of the Cariboo. In addition, he plays a mean bagpipe.
LIQUOR CONTROL AND LICENSING AMENDMENT ACT, 1993
Hon. C. Gabelmann presented a message from His Honour the Lieutenant-Governor: a bill intituled Liquor Control and Licensing Amendment Act, 1993.
Hon. C. Gabelmann: Hon. Speaker, the purpose of this bill is to provide a more efficient and effective regulation of liquor licensing and control, and to be more responsive to the needs of both the industry and the public. The main provisions of the bill include a more clearly defined authority for the Liquor Appeal Board, constraints on the minister's power to direct the general manager of the liquor control and licensing branch on specific licensing and enforcement decisions, and providing the general manager with the emergency powers to close an establishment for a period not exceeding 24 hours if public safety is threatened.
I move the bill be read a first time now.
Bill 44 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.
TOXIC SOIL INCINERATOR PROPOSAL IN DELTA
F. Gingell: My question is to the Minister of Environment. Last night the Delta environmental advisory committee, which is loaded with technical expertise, reported to Delta council with strong concerns regarding the permitting process and the many unanswered technical questions on the matter of the toxic soil incinerator proposed for River Road, Delta. Has he considered using the provisions of section 23(3)(h) of the Waste Management Act, which allows him to suspend or cancel a permit?
Hon. J. Cashore: One thing at a time. I am having a meeting with the mayor of Delta and the representative from the GVRD on Monday morning. It's my understanding that the appropriate process has been followed. However, there is sufficient public concern being expressed that I am going to review this, in an abundance of caution, with the appropriate authorities at that time.
F. Gingell: I am really pleased that my questions to the minister during the estimates process have caused him to give pause to this issue and to give it a second thought.
The minister is a member of the Council of Ministers of the Environment. This particular permit doesn't meet any of their recommendations. Has the minister considered resigning from that council, considering that he's not willing to live by their standards?
Hon. J. Cashore: That subject, along with other subjects, will be thoroughly canvassed at our meeting
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on Monday. I have reviewed the question of the CCME standards. There is some question about how far-reaching the application of those standards is. But obviously that's one issue we are going to be looking at very carefully.
WINDY CRAGGY PROJECT
D. Jarvis: My question is to the Minister of Energy, Mines and Petroleum Resources. Is it true that you are prepared to hang the Windy Craggy project by not allowing them to present their case to the mine development assessment program? Or will you allow them to do that?
Hon. A. Edwards: I think the member knows that that issue is being considered by cabinet, after the report of the CORE commissioner, and we hope to be able to announce some decision soon.
D. Jarvis: To the minister again. Is it true, then, that you have caved in to your special interest groups and to the United States and have allowed no further development in the Haines triangle?
Hon. A. Edwards: It may interest the member to contemplate how many special interest groups are involved in that decision, having given us advice and told us what their feelings are. There are many, and it's a very difficult decision. It requires a decision by British Columbia on land use. It's unusual in this province to have such an extremely high value for preservation in the same location as such an extremely high value of mineral resource. It's a world-class mineral resource finding and a world-class preservation area. The decision that we make will be a very difficult one.
The Speaker: Final supplemental, hon. member.
D. Jarvis: Which issue do you intend to decide first -- the land issue?
Hon. A. Edwards: It's been very clearly stated from the beginning that this is a land use issue, and we are making a land use decision.
[2:15]
HOMEOWNER GRANTS FOR SENIORS AND THE DISABLED
J. Weisgerber: A question to the Premier. We've had numerous calls from disabled property owners who, for the first time ever, are being denied their extended homeowner grant. These folks are being forced to re-prove that they are disabled and are qualified for that grant. Why is the government putting disabled people through this bureaucratic wringer in order to qualify for grants that they have previously qualified for?
Hon. M. Harcourt: If the member could give me that information, we'll check into what he has said and get back to him.
J. Weisgerber: A supplemental question to the Premier. Up until now, seniors who live in seniors' complexes registered under the Society Act have also been eligible for the seniors' homeowner grant. Can the Premier confirm that seniors who own homes in facilities registered under the Society Act will be no longer eligible for their homeowner grant?
Hon. M. Harcourt: I will take that question on notice.
SHELL CANADA
K. Jones: My question is to the Minister of Government Services. When in opposition several years ago, the NDP was opposed to the provincial government doing business with Shell Canada. Has this government changed its position?
Hon. L. Boone: I don't know of any government policy that says we can't do business with any company. There is no government policy refusing business with Shell Canada.
K. Jones: The current Minister of Finance demanded in a letter to the then-Premier in 1989 that the province boycott Shell Canada. Now government air services has contracted to be the major tenant in a new million-dollar air terminal owned by Shell Oil at Victoria International Airport. Will the minister explain to B.C., and especially to Ken Georgetti, why she is taking this hypocritical stance?
Hon. L. Boone: I would be pleased to explain to anybody why we are extending our business to all companies in British Columbia and in Canada. This government does not deny opportunities. I think the province would want to know why you want to deny opportunities to companies which are duly operating here. Politics have changed considerably in South Africa in the last two years, hon. member, and I think you should update yourself on those policies.
RECONVERTING GOLF COURSES TO AGRICULTURAL LAND
A. Cowie: My question is to the Minister of Agriculture. Will the minister confirm that poor-quality, unused agricultural land can be designed for golf courses in such a manner that they can be reconverted to agriculture at some time in the future, whenever needed?
Hon. B. Barlee: That's an unusual question. In the history of civilization in North America, Europe and the rest of the world, only once has a golf course been reconverted to agricultural land.
A. Cowie: From that, I take it that the minister is aware that golf courses can be converted -- if they are designed properly -- for agriculture.
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Is the minister also aware that thousands of golfers are leaving this province and golfing across the border in the U.S.? [Laughter.] I take it that he is aware.
Interjections.
The Speaker: Order, please. Would the member please take his seat until the House comes to order.
Interjections.
The Speaker: I call the House to order. Thank you. Would the hon. member continue with his question.
A. Cowie: The fact is that there are many jobs lost in B.C. due to the current policy of the NDP government. This is a loss of income. Many golfers and recreation users are denied the opportunity to play golf because of this poor policy that does not allow....
The Speaker: Your question, hon. member.
A. Cowie: When will the minister realize that it's better to allow unused land to be used until it's needed for agriculture in, say, 200 or 300 years?
Hon. B. Barlee: In the greater Vancouver district, which would include greater Vancouver plus the Fraser Valley, there are approximately 100,000 extra hectares where they could build some golf courses. This is the case all around the province. The agricultural land reserve is designed to protect one acre out of 20. The golf course individuals have 95 percent of the land in British Columbia to concentrate on, and I suggest they do so on the 95 percent that is not agricultural land.
The Speaker: Final supplemental, hon. member.
A. Cowie: The minister must realize that many thousands of acres right around Vancouver are poor-quality agricultural land that could be used in the meantime. When will the minister realize that people don't want to drive an hour or two up the valley in order to play golf?
Hon. B. Barlee: It's easier to eat food than golf balls, and I think that most people in British Columbia would say we should be very secure of our food in this province, and not held at ransom to other countries. The 5 percent that we've set aside for the agricultural land reserve is reasonable. I don't think it's unreasonable at all. I think the majority of people would appreciate our stand.
HIGH SCHOOL DROPOUT RATES
L. Fox: My question this afternoon is to the Premier. Can the Premier advise this House on the current high school dropout rates for British Columbia? Does he agree with the figures cited in the current issue of Maclean's magazine?
The Speaker: The hon. member for Prince George-Omineca.
L. Fox: For the Premier's information, the article reports that a new Statistics Canada survey concludes that the dropout rate for B.C. is 16 percent as of 1991. Does the Premier concur with the Stats Canada report, and does he recognize that this is the lowest dropout rate in Canada?
Hon. M. Harcourt: The member would probably have directed that question to the Minister of Education if she was here, and I'm sure she would be quite pleased to answer it. The statistic you have mentioned -- that the dropout rate, which we thought was 30 percent, is down to 16 percent -- is indeed encouraging, but this government would like to see it go down even further. That's why I've called a summit next week of a number of leaders in British Columbia to look at the whole issue of education, training and skills, getting people to complete high school to get good training to get good jobs. That's what British Columbians want for our young people.
The Speaker: Final supplemental, hon. member.
L. Fox: Obviously we concur that a 16 percent dropout rate is indeed still too high, but it's substantially below the 34 percent that the NDP government has been assuming was in fact the number. Similarly, having the second-lowest dropout rate, as we do, is much better than having the second-highest dropout rate, as this NDP government has been claiming. Will the Premier concede that the new Stats Canada figures are the most accurate, and will he commit to cite these figures from now on in all government issues?
Hon. M. Harcourt: I think we agree that 16 percent is still too high. What we should be concentrating on, and what is being missed, is the number of young people who are dropping back into the system. Instead of looking, as we normally do, at young people concluding their high school by the age of 18, we should have an education system that is far more inclusive and allows young people who don't go on to college or university to feel that they have opportunities in trades training and vocational courses and entrepreneurial and small business opportunities. We should be directing our education system toward one that includes 100 percent of young people, so 16 percent won't feel that they have to drop out because their needs aren't being met.
G. Farrell-Collins: I think it's amazing that we now have the education Premier talking about inclusiveness and about kids getting into school and finishing school, when for six or eight weeks he did absolutely nothing in this province and abdicated his responsibility by absenting himself from cabinet meetings.
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REPEAL OF BILL 31
G. Farrell-Collins: The other day we had the Minister of Labour announcing to the Canadian Union of Public Employees that he was going to repeal Bill 31. Will he commit to keeping Bill 31 on the books until the education system in this province is sorted out and until there is a new bargaining system?
Hon. M. Sihota: The hon. member himself, during the course of debate on Bill 31, voted in favour of the provision which repeals the legislation on March 31, 1994.
The Speaker: The bell ends question period.
REPORT ON COMMITTEE A ESTIMATES
J. Weisgerber: The debates on the estimates of the Ministry of Aboriginal Affairs gave us an opportunity to canvass a number of issues. I was particularly interested in the discussions we had around the negotiation of treaties and the opportunity that provides to resolve land claims in British Columbia.
The debate also gave me, at least, an opportunity to reconfirm the position of the Social Credit caucus that it is important to enter into treaties as a way of ensuring that we have lasting and binding settlements in British Columbia, which will in fact give us an opportunity to put the issue of land claims behind us. It also provides an opportunity for us to enter into treaties that are the essence of fair agreements and that recognize the interests all British Columbians.
The estimates debate provided me with an opportunity to urge the minister to recognize the special responsibility he and his government have to represent the interests of those non-aboriginal British Columbians who will not have a place at the negotiating table. I believe that governments, federal and provincial, have a responsibility to represent all their citizens. In the case of aboriginal land claims, aboriginal people will be there at the table. They will have an opportunity to express their issues and put their positions on the table. I'm sure that they're very capable and will do an admirable job of that undertaking. But the remaining British Columbians, those who are not aboriginal, are going to have to depend on the federal and provincial governments to represent their interests. Given the traditional federal government stance and the attention that they've traditionally paid to their fiduciary responsibility for Indian people, I believe there rests with this minister a particular responsibility to be there, to be aware, and to be sensitive of and to articulate the interests of non-aboriginal British Columbians.
[2:30]
I also urge the minister to make sure that land claim negotiations or treaty negotiations are an open process; that British Columbians have an opportunity to understand the ongoing negotiations; and that they have an opportunity to examine the positions taken by the three parties when negotiations started, and thereby have an opportunity to follow the negotiations and understand the settlements when they are finally concluded. At the end of the day, those negotiated settlements are going to require, in one way or another, the approval of the people of British Columbia. The people of British Columbia are going to have to, by some method or another, endorse, accept and be willing to live with the settlements. I believe that can only happen if people have an opportunity to follow the discussions in the negotiations. We've seen what happens, and we've seen public response, when intergovernmental agreements are reached behind closed doors. We saw British Columbians, particularly, reject the Charlottetown accord. The same thing happened across the country with Meech Lake. British Columbians and people generally in this country are very leery of agreements and arrangements made by governments behind closed doors. So I think it is particularly important, as we move into this phase of land claims negotiations in British Columbia, to make sure that it's an open process that people can examine; that people have access to information.
We also had an opportunity to discuss with the minister the thorny issue of cost-sharing between the federal and provincial governments. It's pretty obvious that British Columbia has been disadvantaged by the early and unfortunate comments made by the now-Premier when he was Leader of the Opposition.
I see that my time for this brief summary of estimates has concluded, and I thank you for the opportunity to respond here.
V. Anderson: It's a privilege to respond at the end of the estimates of the Ministry of Aboriginal Affairs. I would particularly like to thank the minister for his efforts to ensure that we had briefings, both with him personally and with members of his staff prior to these estimates, as we developed and understood the programs put before us. I want to particularly thank the staff who participated in the briefings; we appreciate their time and efforts.
The Aboriginal Affairs ministry is fairly new in many of its functions. I want to express appreciation to the minister in the reorganization he has undertaken within that ministry to clarify the ministry's roles in working not only with the treaty negotiations but also with the aboriginal people, to cover all aspects of their involvement in our provincial activities.
The concern of governance was raised during the estimates discussion. It seems to me that this area is being overlooked. We are talking about treaties on land and possessions, fisheries and forests, but we are not yet talking about how we live together with common, shared governance in the recognition of aboriginal and non-aboriginal people, each having independence but cooperating in a shared living space. We hope that the ministry and others concerned with this will begin to focus on this area of concern as well.
We appreciate that the ministry has been working with the First Nations Summit and with the Union of British Columbia Indian Chiefs. No doubt there are other groups that will also have to be taken into account as these processes continue.
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A great deal has been said about partnerships. We are struggling to discover the meaning of those partnerships -- federal, provincial and municipal, and with local community people. We have heard about third-party interests being taken into account so that they might feel a part of the negotiations. But I have expressed concern about those who are not involved in third-party negotiations -- those who are not formally involved with the communities across the province -- and how they will feel that they are a part of the new thrust that is being taken, which is important to our province, as we live together cooperatively.
I also want to stress that we need to undertake educational approaches to better understand the contribution of the aboriginal people to our communities, not only in the past but also for the future, and that as we work together, it will be for the benefit of all.
I also want to mention that the Provincial Capital Commission comes under the jurisdiction of the Minister of Aboriginal Affairs. I wanted to thank him for the clarity of his presentation on that commission as it works cooperatively with the city of Victoria in the areas in and around the capital buildings. I want particularly to comment on his presentation regarding the plans for St. Ann's Academy. I would encourage all who have an interest in the plans for that development to read in Hansard what the minister has said, so they will be more fully informed and be able to respond.
Overall, I would like to thank the minister for his presentation, his clarity, his responsiveness and his willingness to go back, research and provide additional information to us. I appreciated very much the opportunity of working with him.
Hon. A. Petter: I would like to express my thanks to the members opposite, in particular the member for Vancouver-Langara and the Leader of the Third Party, for their very substantive contributions during these estimates. As well, I would like to acknowledge the work of my staff in providing briefings and assisting me during the debate.
The debate provided a useful opportunity to review some of the activities of my ministry, which has been given a new and expanded mandate under this government. That mandate is very much directed at establishing a new relationship with first nations in recognition that aboriginal peoples do have inherent rights and, as the Leader of the Third Party indicated, that lasting and binding agreements through treaty negotiations are the best way to recognize those rights. That move toward treaty negotiations is a central focus of our activities, as is trying to find solutions, through cooperation and harmony rather than confrontation and litigation, to problems that have existed for aboriginal peoples.
The ministry has undergone a major reorganization over the past year, as the member for Vancouver-Langara noted. That has been a challenge for the ministry, but I think the reorganization has assisted us tremendously in preparing for the tasks that lie ahead. I'm very proud of the activities of my ministry, of those who work for it and of the progress that has been made to date.
In the estimates debate we had an opportunity to review some of that progress. In the area of treaty negotiations, we discussed the progress that has been made in the Nisga'a negotiations under a new negotiating team put together in the past year. I was proud to report concerning the interim protection measures agreement that was signed last November. That agreement takes a substantial step towards the conclusion of those negotiations and has achieved widespread support from members opposite as well as people within the community.
I also reported on some of the building blocks that we have put in place in preparation for comprehensive treaty negotiations elsewhere in the province, such as the B.C. Treaty Commission, which was debated in this House. I was able to review some of the thoughts and directions that I foresaw for the Treaty Commission and for my ministry in relation to the commission. Certainly the commission provides a very useful vehicle that will move us ahead by providing a process for trying to resolve many of these longstanding issues in a way that will promote stability and certainty for all British Columbians and justice and self-sufficiency for first nations citizens in particular.
The Leader of the Third Party made reference to the need to include third parties and others within the process. I think we have made substantial progress in that direction over the past year, and I was able to review those steps. We are in the process of finalizing arrangements with the third-party advisory process for an enhanced and far more effective sectorally based consultation process with federal government involvement. That will afford to third-party groups on a province-wide basis a very meaningful opportunity to be involved in treaty negotiations. We have also taken steps to include municipalities in a formal way within the negotiating process, signing a memorandum of understanding with the Union of B.C. Municipalities that ensures that municipalities will be fully involved and consulted on issues of concern to them. In addition, the Premier and I have given an undertaking to municipalities to seek a role for them as observers during the course of those negotiations that impact upon them. So there has been progress in that regard. Local consultation will be a very important issue as we move towards particular negotiations. In the Nisga'a claim area we have completely revised -- and I think substantially improved -- the local consultation process under the leadership of our new negotiating team. I'm very pleased with the direction that has been taken there. I think it points to a new direction in terms of local consultation as we move to other negotiations.
I take very seriously the concerns of the member for Vancouver-Langara that it's not enough to include formal third-party groups; we have to reach out to the community as a whole. We certainly intend to do that. We have done it in the Nisga'a claim area through open houses. Along with the Treaty Commission we will be engaging in a program of information-sharing to try to bring the public at large into the process.
Similarly, I take seriously the comments made by the Leader of the Third Party with respect to the need to promote openness in the process, although I must say
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that some of the provisions he agreed to in the Nisga'a agreement have hampered our attempts to promote openness to date. We are nevertheless striving to maximize the degree of openness in those negotiations and, hopefully, can negotiate some more favourable provisions in subsequent framework agreements so as to promote openness. Perhaps he has learned from his own bitter experience of the need to ensure openness. We will certainly do our best to promote information-sharing and openness, but we must be careful, of course, that by doing so we do not undermine the integrity of the negotiations, and that is going to be something of a balancing art.
The Leader of the Third Party also referred to cost-sharing. Certainly that is the third step that I think we would all like to see taken in order to set the stage for treaty negotiations. If we can establish a clearer sense of what the apportionment of costs will be, then we can evaluate more accurately what the benefits will be and how we can move forward into treaty negotiations. An agreement on cost-sharing with the federal government, which I am optimistic can be achieved in the near future, will be an important building block. It won't tell us how much the treaties themselves will cost or what the settlements will be, but it will set the stage and help us to evaluate those costs as we move forward.
I agree that the cost-sharing agreement must be one that represents British Columbians and is fair for British Columbians. That has been our policy, and it was the policy of the previous government as well -- that British Columbia did have some responsibility in this area, but it must be a fair share, taking account of British Columbia's history. During the course of the debate, I referred to other provincial jurisdictions that have contributed sums in cost-sharing arrangements. In the case of Alberta the sums were as high as 40 percent of budgetary costs; Saskatchewan, 49 percent; Quebec, in the range of 80 percent. I referred to those to suggest what is happening elsewhere but also to suggest that British Columbia is different. We must recognize and press the case with the federal government that our unique history in which negotiations did not take place means that the federal government bears a larger share of responsibility in B.C. than it does elsewhere.
In addition, the debate centred on some of the pre-treaty initiatives that the government is taking in a variety of areas to enhance stability and promote a new area of cooperation with first nations. I'm particularly proud of the steps we took last week to establish a new forum with the Union of B.C. Indian Chiefs to discuss areas of policy concern that are of mutual interest. I anticipate that a similar forum will soon be established with the summit group.
[2:45]
In conclusion, I would say that the work of the ministry has been very full in the past year. It will be fuller in the year ahead. But I think we now have the organization and the mandate in place to move forward and ensure that British Columbians are included, and to build towards a new relationship that will promote self-sufficiency for first nations, acknowledging that first nations have historic rights. It will also promote for all British Columbians a new era of stability and certainty in which investment and other economic opportunities will be afforded to citizens of this province due to the benefits that treaty negotiations and the new relationship can provide.
[E. Barnes in the chair.]
With those comments, I would like once again to thank those who participated in the debate. I learned much from it, and I look forward to the year -- and hopefully, years -- ahead working with members opposite to resolve many of these daunting but very worthwhile challenges.
J. Beattie: I have the honour to present the first report of the Select Standing Committee on Aboriginal Affairs. I move that the report be taken as read and received.
Motion approved.
J. Beattie: Hon. Speaker, I ask leave of the House to move that the report of the committee be adopted.
Leave granted.
J. Beattie: Hon. Speaker, I move that the report be adopted.
It is with great pleasure that I have the opportunity today to present this first report. I'd like to thank those who made the drafting and presentation of the report possible. To begin with, I'd like to thank the hon. Minister of Aboriginal Affairs and the cabinet for directing this to the select standing committee. Secondly, I'd like to thank all the members of the committee who participated and made information available through their research. I'd like to make particular reference to my co-Chair, the hon. member for Comox Valley, and to the hon. member for Vancouver-Langara from the opposition, who participated with great zeal and drew our attention to many issues. I'd also like to thank the Clerk's office for their strong assistance in helping us organize the tours, and so on. Finally, I would like to make reference to the support of the staff in the Ministry of Aboriginal Affairs, and particularly to Hugh Hughson, who was a great resource to us, and directed us to finding out where we could best obtain the necessary information to make the report possible.
Hon. Speaker, I was honoured to have met with so many wonderful people during the months that we took to draft the report. We certainly got a feel for the great diversity, energy and enthusiasm that exists in the aboriginal community.
We were presented with a broad and quite detailed topic to consider. For those who may read Hansard, I would like to read into the record what the terms of reference were. With respect to the First Citizens' Fund program we were asked:
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"To consider the effectiveness of the current program design, delivery mechanism and benefit to the client; the appropriateness of the current program to address the barriers to small business development experienced by aboriginal people; and finally, recommendations concerning the design and delivery of the loan program, to ensure the established mandate of the fund and the changing needs of the aboriginal business community are being met."
As we went out into the community, it became obvious to us that this was a very important undertaking for the aboriginal community at this time. Although it is not a large program in terms of the dollars, it serves a very key function. It serves to draw into business enterprises people in the aboriginal community who have never before been exposed to the undertakings that are necessary to entrepreneurship. That is a very important aspect of this program, especially as the first nations move towards greater economic independence in the province. We've just heard the minister and the opposition members speaking about treaty negotiations. The establishment of a strong economy is something that is very important, and will become more important as first nations move further down the road to greater autonomy and independence. So the whole question that we were given was a timely one in the history of the province, and particularly in the history of aboriginal people as they move into this transitional stage.
For the record, the First Citizens' Fund was established in the late sixties as a trust fund, and the interest that was generated from the fund was used primarily to support social and cultural programs. It was not until the late eighties that the previous government created a loan program out of the cultural program -- with the cooperation of the Native Economic Development Advisory Board, which is a body of aboriginal people who advised and still advise the minister. As it turned out, it was decided that there would be the ability to borrow money and, at the same time, to defer a portion which would be paid by the provincial government after 50 percent of the loan was repaid.
It hasn't had a long time to establish itself in the province. As I said, it's a new program as of 1988. To some degree, that guided the considerations of the committee. We recognized that during the first few years there were questions of how the program should be delivered and which agencies should deliver it. In the initial stages the program was delivered by a credit union, and it was only delivered in later years by aboriginal capital corporations. That's the trend that will be continued into the future.
At any rate, our approach toward the review of the effectiveness of the program was determined to a great extent by the Native Economic Development Advisory Board, which felt very strongly that we should see all parts of the province and make our decisions based not on rural or urban natives particularly, but as a result of input from all sectors. That's what we did. I think we did a fairly unique thing, and I'd like to thank the members of the committee for being so cooperative and flexible. We broke into small groups, and we toured the province from Castlegar to Dease Lake, Vancouver Island up to Fort St. John and all those areas in the middle -- but only in small groups instead of as a large committee. I think it was an effective way to garner a great deal of information about what's happening in aboriginal communities across the province.
It was a very interesting undertaking, and I could talk for a long time about what we did and what we heard. I hope that not only the members of the House but also the public will read the report. I would like to go over the major thrust of the report as designed by the committee, with the input from those people I've already referred to.
The first thing that we felt was very important, being a provincial fund, was that there be greater accessibility in all areas of the province to funds that are available for starting an enterprise. To that end, we felt it was important that funds be targeted on a per capita basis, or in some appropriate manner, to all areas of the province, so that urban individuals living in Vancouver, Victoria or Prince George will have access to those funds, and that people living in Tumbler Ridge, Dease Lake, Fort St. John or any of those places will also have access to what is, basically, a provincial program.
We think that in order to do that, there has to be better service in terms of delivery mechanisms. There has to be a greater promotion of the program in a way which is appropriate for both rural and urban natives, and we felt that oral ways of delivering the program were important. We felt that getting better information and more service was a way that the fund would become accessible to more people in the province.
We also felt that the aboriginal capital corporations which service almost the whole province were the appropriate people to be delivering this program. We've made some firm recommendations about contracts with aboriginal capital corporations to give them greater stability in planning ahead. We've recommended three-year contracts. We've recommended fixed sums of money so that aboriginal capital corporations can establish a long-term relationship with their clients, and also have the security of being able to offer particular services based on the funding that the province might be able to provide through the trust fund.
The question of developing a healthy native economy is of prime importance to this government. With the help of the opposition parties, this report will give some food for thought to the Native Economic Development Advisory Board, to the ministry and to all those people who are actively supporting the efforts of our aboriginal people to establish an autonomous and strong economy.
On that note, I would again like to thank the committee for their support and their efforts. I am very pleased to present the report today.
V. Anderson: I would like to express my appreciation for the opportunity to be on this legislative committee. I would like to thank the member for Okanagan-Penticton for his excellent chairmanship of the committee. We had a fair bit of discussion and finally came to a consensus on the report that is now before the people. I think one of the chief learning experiences for me and many others was the
[ Page 7240 ]
opportunity to visit with the aboriginal people throughout the province and to hear from them firsthand their concerns and interests, and also to become more aware of the financial expertise that many among the aboriginal community have, not only in the capital corporations that we've already heard discussed today, but in other business and planning activities. On the other hand, we also heard about their frustration with having to work with different branches of the government and find that there is confusion and disorientation between them as they try to work on their own economic development.
Part of the recommendations -- if not implicit in the report -- are comments included with the recommendations that there be a more effective cooperation in the economic aspects of this government. Instead of this particular loan fund being administered by the Minister of Aboriginal Affairs, perhaps it should now be administered by the Minister of Economic Development. Other aspects of the program dealing with the scholarship funds for aboriginal people are to be maintained within the Ministry of Aboriginal Affairs.
We discovered that although the fund was effectively used by many people, the majority of the people we talked to were not aware of the fund; and when they were aware of it, they often had problems accessing the fund. So there are recommendations to first of all improve their awareness of the opportunity for this fund, and then to improve the manner of accessing the fund itself.
We also became aware of the larger context in which we sit. In meeting with representatives of national banking institutions, we found that there was a greater interest in being related to aboriginal funding -- involving themselves in consultation and in working with these groups. There is a new approach on the part of the federal government, in some ways withdrawing from the historical role which they have taken, and therefore a need for the provincial government to carefully consider their relationships in these undertakings.
[3:00]
I want to particularly express our thanks to those who conducted the tours -- the people from the aboriginal community who met and hosted us and made us very much at home in their communities and in their institutions. It was a privilege to work on this committee and to be part of it. As it goes back to the Minister of Aboriginal Affairs for consideration, I trust that before too long we will hear the results of the minister's consideration, and of the review I know that the ministry is also undertaking, because there is a concern in the community at large that after such a study is undertaken they should hear very quickly about the process before them.
J. Weisgerber: I have had an opportunity to sit for a short while on the select standing committee that was considering this issue. I have had a considerably longer relationship with the First Citizens' Fund and the privilege of associating for a number of years with members of the Native Economic Development Advisory Board. The recommendations that I see here are designed to improve the delivery of the First Citizens' Fund -- a fund, as the member indicated in his opening remarks, that has been in place since the 1960s and available to Indian people, aboriginal communities and others around the province for economic development. It also encourages further education of aboriginal students. Essentially, I support the changes that we finally agreed on -- which is not to suggest that there weren't some changes I might liked to have seen dealt with in a slightly different manner; but that's always the case when you have 15 or so people considering a relatively complex issue. In fairness, we came to a reasonable consensus on the changes that are to be made, and I too would join in encouraging the Minister of Aboriginal Affairs to consider the report and implement it as soon as he possibly can.
J. Beattie: I just want to say thank you to both the members of the opposition for their support and cooperation.
Just with regard to a specific about the report, over the last number of years since the program was first introduced, we have seen a tendency for the size of the loans to drop -- not substantially, but from about the $50,000 range down into about the $42,000 range. I just want to have on the record, on behalf of the committee, that one of the important thrusts of the report is to make smaller amounts of money -- or at least adequate amounts of money -- available to a larger number of people, specifically to those very important small businesses in their initial stages that need to have access to small amounts of capital.
One of the important recommendations in the report talks about allowing an individual to borrow up to the maximum amount of money for the same business, but in a number of loans. That first loan would start off at $20,000, say, and there would still be $55,000 of funds that could be accessed at a later date. That was an important part of the committee's undertaking. I wanted to mention that at the beginning, but I'm taking the opportunity now.
Motion approved.
Hon. M. Sihota: I hope that tone will mark the rest of our deliberations for the balance of the day. With that said, I wish to advise all hon. members that the Douglas Fir Room will see the convening of Committee of Supply A to deal with the estimates of the Ministry of Transportation and Highways this afternoon. Secondly, I would like to call committee stage on Bill 26. Thirdly, I wish to advise all hon. members that the House will be sitting tomorrow, commencing at 2 o'clock.
Deputy Speaker: Before I recognize the Chair of Committees, the hon. member for Okanagan-Vernon on a matter....
J. Beattie: Hon. Speaker, may I have leave to make an introduction, please?
[ Page 7241 ]
Leave granted.
J. Beattie: Hon. Speaker....
Deputy Speaker: Just a moment, hon. member. Was there a point of order by an hon. member?
G. Wilson: The point of order was simply to get the riding correct.
Deputy Speaker: Thank you, hon. member. Okanagan-Penticton, not Vernon. Please proceed, hon. member.
J. Beattie: To confuse you even further, hon. Speaker, I rise on behalf of the member for Shuswap, who happens to not be in the House today; she's in her riding.
Interjection.
J. Beattie: That's right, we're taking over the whole Okanagan today.
From that hon. member's constituency, we have some grade 7 students from Parkview Elementary School in Sicamous. I believe that the class is up here. Their teacher is Mr. J. McDonald, and I see that they are accompanied by some parent chaperons. I'd like the House to make them welcome today.
WASTE MANAGEMENT AMENDMENT ACT, 1993
(continued)
The House in committee on Bill 26; F. Garden in the chair.
On section 2, 20.1 as amended (continued).
J. Tyabji: Before we adjourned for the noon break, we had canvassed "contaminated site" under the interpretation section. The next definition in the interpretation section that is causing the opposition great difficulty is "government body." It states in this bill: "...'government body' means a federal, provincial or municipal body, including an agency or ministry of the Crown in right of Canada or British Columbia or an agency of a municipality." The one phrase that seems to be glaringly missing is the reference to the first nations and the aboriginal level of government -- what this government is calling the third order of government. It's a strange omission, in that we spent some time during the briefing, and certainly in second reading, dealing with the fact that the opposition is very concerned that Bill 26 will not be applying to land under the jurisdiction of aboriginal people or the first nations. We didn't get a response to that from the minister.
We know that under Bill 32 -- another piece of legislation of this very ministry -- "first nations" is adequately defined. It causes us a lot of concern that in the environmental assessment process the aboriginal order of government has not only been defined but has also been included as a participatory agent at the table, yet in Bill 26 there's not even a reference to that under the definition of government body.
To rectify that, I would like to move that section 20.1 be amended to read: "`government body' means a federal, provincial or municipal body or first nation, including an agency or ministry of the Crown in right of Canada or British Columbia or an agency of a municipality or an agency of a first nation."
Also, a supplementary amendment must be made that is contingent on that. I'm not sure if this in order, but the other part of the amendment is: "...'first nation' means an aboriginal governing body, however organized and established by aboriginal people, within their traditional territory in British Columbia." So that definition will be moved as well.
I understand that both amendments will be taken together. We have taken the definition of first nation from this government's definition of first nation in the Environmental Assessment Act. We have added the definition of first nation under that of government body. It is the very strongly held opinion of the opposition that the fist nations land should be included in the contaminated-site legislation, because we know that parts of this bill talk about downstream contamination. As we mentioned in second reading, if we are going to have the potential for downstream contamination to be dealt with in this bill, we must also include land which is under aboriginal jurisdiction.
The Chair: We will allow discussion on both amendments, but when they come to a vote, we will vote on them separately.
On the amendments.
Hon. J. Cashore: The first thing I want to say in response to these two proposed amendments is that I take the point the hon. member is making in good faith. I believe that the point is being made on the basis of a legitimate concern. In opposing the amendment, I want to make it very clear that the legitimate concern being expressed in seeking to put the amendment forward is understood. However, given this legislation, at the present time there is a definition covering Indian lands that comes under the federal Indian Act. It is the definition that exists at this time in Canadian law.
At the present time special negotiations are taking place in two parallel processes involving first nations organizations: the First Nations Summit and the Union of B.C. Indian Chiefs. The discussions and negotiations that are taking place at a very significant level are such that we should not be, at every moment that we are drafting legislation, prejudging the outcome of those negotiations. The negotiations are delicate. They are being done in good faith. It is the intention of this government, upon the completion of that very sensitive process, to introduce amendments to those statutes where the definitions that are coming out of the negotiations in those parallel processes at that time will apply. Therefore, to begin as a one-off to incorporate a definition -- or indeed to include a government body that does not yet fit that definition -- would be to
[ Page 7242 ]
prejudge the process, and in some ways it would be an affront to both parties to those negotiations.
I want to make it very clear that the principle behind this initiative on behalf of the Liberal Environment critic is an appropriate principle, and I commend the hon. member for having raised the issue. However, this is not the way to do it in terms of this legislation at this time. But I give this member my assurance that the government intends to make the appropriate amendments to legislation following the appropriate processes that are underway in negotiations between the government and those two first nations organizations, the Union of B.C. Indian Chiefs and the First Nations Summit.
G. Wilson: This amendment is critically important for a number of reasons. It has indeed been offered in good faith and with good reason and good cause. I find it strange, to say the least, that this minister introduced Bill 32, in which the first nations are provided not only a definition but a direct role to play in environmental assessment. I find it interesting that in the Environmental Assessment Act this minister doesn't seem to think there's any kind of affront to or prejudging of or movement in advance of first nations governments being involved in the environmental assessment process. In fact, they're given a role and a seat at the table; they're given direct input into it. Yet when it comes to Bill 26, the Waste Management Amendment Act, the minister says that it doesn't apply because there are two processes underway -- one under the Summit and the other under the Union of B.C. Indian Chiefs -- that shouldn't be prejudged.
[3:15]
If the minister knew anything at all about the two issues under the Summit and the Union of B.C. Indian Chiefs, he would know that they're simply facilitators of land claim discussions. It's got nothing to do with the jurisdictional questions that will ultimately be determined. Therefore the argument put forward by the minister is, I think, fallacious in the extreme. There is absolutely no reason why the duly constituted government of the province of British Columbia cannot enact in this legislation a definition of, and an inclusion of, first nations government as constituted in the province of B.C. in a process that will govern them under the Waste Management Act. In fact, one could argue that it is to our collective advantage, aboriginal and non-aboriginal, to have that inclusion now, prior to any kind of negotiation that may take place between the three groups that sit in negotiation -- the aboriginal community and the federal and provincial governments -- where those negotiations could exclude or preclude them from such an act, particularly in light of the direction that this government has taken with respect to government-to-government status.
So I think that the minister is going to have to do better than what he's just come up with to convince us that this is not only a sensible and meaningful amendment on this question, but something that British Columbians, aboriginal and non-aboriginal alike, would like to see to maintain the kind of protection needed in an orderly and sensible distribution of authority over waste management matters.
Hon. J. Cashore: I realize that we are straying in discussing Bill 32 during a section of Bill 26. However, if the Chair will indulge me, I feel that because this reference was made I need to repond to it. In responding to it, I would point out that this is really an apples and oranges comparison.
The reference to first nations in Bill 32 is to a specific role the first nations would have in a review process. Bill 26 is a land-specific bill. We have no problem with the reference in Bill 32. It is not a parallel example, in any way, shape or form. I would just reiterate that the points I made before are points that are significant in terms of the reason that this amendment cannot be accepted in this form at this time. But I have given my assurance, and it's on the record, that after this government concludes its negotiations with those two parallel processes, it will be doing the appropriate thing in updating the statutes of this province.
G. Wilson: Notwithstanding the commentary, we don't need to get into any elaborate discussion on Bill 32, because clearly we're here in committee on Bill 26. To summarize what the minister is saying, he has no problem with members of the aboriginal community sitting at a table determining an environmental assessment on development projects that are being proposed in British Columbia. But he does have a problem with a law that will apply equally and evenly to all British Columbians with respect to contaminated sites, whether they should be on aboriginal land or not. That is a major inconsistency. I would suggest that if you look at this bill, and look at the number of times the government body is introduced, and the definition of government body, that it is a sensible amendment to include now aboriginal first nations as a government in this bill. What that does is provide a reasonable level of protection for all citizens -- aboriginal and non-aboriginal -- who live in British Columbia.
In the amendment, in this great host of ten pages of amendment dropped on our desks this morning, with which we're supposedly going to amend this act, which we only got a few days ago.... If we look under section 20.4, which we'll be getting to and will talk to in more detail, where there is a reference to a government body, it talks about those that are excluded from the processing: "...a government body that involuntarily acquires ownership interest in the contaminated site...." Then -- this is a critical point and needs to be addressed here -- it says "...other than by government restructuring or expropriation...." I can tell you that if in the land claim process there is a significant restructuring over jurisdictional questions, that's going to have an impact.
This minister simply cannot give this assurance that we're going to amend the act for inclusion, because by the very nature of the substance and direction of negotiations, those negotiations themselves may preclude this government from taking the kind of action that this minister is promising he's going to bring in. So he has to know that if you're going to put in those
[ Page 7243 ]
kinds of protective measures, the time to act is now. You close the barn door before the horse has bolted, not afterwards, when you say: "Well, that's true, it may be out of the barn; but don't worry, because we've got a team of people who are going to go out and try to round it up." So I think the minister has to come up with a better explanation as to why it's not appropriate in this bill to include first nations in the definition process, whereas first nations people are included in virtually every other bill on land use and environmental assessment. This one seems to be a case of exclusion.
J. Tyabji: The amendments have been put forward with a view to closing a loophole with regard to land use in the province. We know that there are some negotiations going on in B.C. about aboriginal land. We also know that there are existing aboriginal jurisdictions, such as the Westbank Indian band and the Sechelt Indian band, who may themselves have a problem with regard to downstream contamination from non-aboriginal jurisdictions. They may also have a problem, in that land under their jurisdiction may be causing a problem downstream.
We know from numerous other debates that there are a number of land use decision processes in action throughout the province on behalf of not just this ministry but other ministries. This legislation with regard to contaminated sites only covers non-aboriginal lands, and that doesn't make any sense. I understand the minister's point when he says that we are not sure, as we sit here today, what will or will not be considered aboriginal jurisdiction. But we also know what is currently aboriginal jurisdiction. We know there are land claims that have been settled. We know there are self-government provisions for some aboriginal people around the province which are accorded a special legal status by this government. We don't know the extent to which this government is going to be abrogating its own legislative jurisdiction on those aboriginal lands.
I think it should be mentioned that if we don't close this loophole now, after those negotiations this government may not have the opportunity to do that, because the negotiations may preclude any future closing of the loophole. This minister may not ever be able to legislate contaminated sites on aboriginal lands if we end up adopting a third order of government that doesn't allow Ministry of Environment jurisdiction over such sites. That's a major problem. It's a major problem as well in that aboriginal people may want to be included in this legislation.
I think it comes down to the whole question of equality. How is it that we are so sensitive as to include first nations government in all the other legislation that comes forward? In fact, we have legislation coming before the House that is specifically tailored to the new concept of first nations government, even though we haven't defined it. We know that we have bill after bill coming before the House with reference to the yet-to-be-defined aboriginal government; in fact, it's defined as best the government is able right now. Yet in something as important as contaminated site legislation we don't have any reference to the first nations. I think that's unfortunate.
As we said yesterday in the Bill 32 debate, there is only one map of the province; there is only one pie. We know it's going to get cut up into some pieces: an aboriginal piece, a protected areas strategy piece, a mining piece, a forestry piece. We know that there are pieces already in place as it exists now. So why is it that the pieces referring to land under the jurisdiction of first nations are completely left out of the Waste Management Act? Is that a deliberate action by the government? If so, what legislation will cover contaminated sites on first nations land? Currently, first nations have jurisdiction over large tracts of land in the province. They may be having a problem, and they may want to be under the provincial legislation.
I hope the minister will be responding to this. From my perspective of having dealt with environmental issues and the first nations land jurisdiction problem, if we don't account for this under this bill -- as we had an amendment defeated this morning that tried to talk about the receiving site for the contaminated or toxic waste -- we could end up, for example, with aboriginal land being the receiving site for the toxic waste. There's nothing in this bill to preclude that. In effect, we could end up with a large toxic dumping ground on first nations land. The minister would have no legislative ability at all to prevent that from happening, because he didn't allow for the remediation plan to be amended as we suggested. He seems to be blocking an amendment to this section to include the first nations people and to give them a definition under this bill. I look forward to the minister's response.
Hon. J. Cashore: I'll be very brief. There are very significant negotiations going on between this government and the two parallel processes representing aboriginal persons. To preclude that process now would not do justice or give sufficient respect to either of the parties that are presently involved in those discussions. Legislation can be amended at the appropriate time. That is the time to put in the correct wording as agreed to by those parties out of that process. To do so at this time, without having reference to those parties, would be paternalistic and inappropriate.
G. Wilson: It's really hard to keep one's cool when you hear it's paternalistic. What a lot of utter nonsense. This parallel process that we're talking about may take anywhere from ten to 15 to 20 or even 30 years. Hopefully it won't, but if we look at the Yukon as an example, that process took 25 years. For 25 years there were lands that were under negotiation. Some of them, under the jurisdiction of federal statutes, can receive and have received disposal of toxic material. There are processes now underway on those lands where toxic material is leaching out into water systems and affecting communities.
This minister and this government are not prepared to make a simple amendment that would protect the first nations citizens of this community, as well as non-first nations citizens, by including first nations government in the definition of government. Yet in every other bill, such as this Environmental Assessment
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Act, there is no problem with it because it's a process bill. This deals with the reality of land use.
[3:30]
I have just checked, and will have coming to me the federal statute on Indian lands. This minister has said that there are federal regulations on these lands. I defy him to show me where they are. To my knowledge there are none, and I'm fairly familiar with the Indian Act and how the Department of Indian Affairs regulates these processes. I'd like to hear this minister explain why this government isn't prepared to accept this kind of sensible amendment, and include in this process those lands that are currently under jurisdiction and may, in fact, after the negotiation process, be managed by a third order of government.
Hon. J. Cashore: It's a constitutional fact that we cannot apply this legislation to Indian reserves at the present time. That's a simple constitutional fact. Our government is diligently working on dealing with this through the negotiation process that I have described.
I think it would be helpful if the hon. member could try not to sound so angry in his comments. I don't see how that's useful to the process that we're involved in right now. I think he can make his point in a somewhat more considered tone, but it's up to him how he wishes to express himself. I think that we've canvassed this very thoroughly, hon. Chair, and that it's about time we voted on this opposition amendment.
G. Wilson: I'm going to use a much more conciliatory tone because I certainly wouldn't want the minister to think that I was angry at him as an individual. That's not at all the case. It's just a question of frustration with the lack of inclusion of first nations governments in the definition of government put forward in this bill. I am well aware of the Canadian constitution and the regulations within the Canadian constitution on what can and cannot be applied to reserve lands. However, it is quite clear that we are now entering into negotiations with aboriginal people on a government-to-government basis. Indeed, there was a rather glossy little press release put out by the Minister of Aboriginal Affairs with respect to a new process of discussion and negotiation with the Union of B.C. Indian Chiefs on the weekend. That process provides an opportunity for the Union of B.C. Indian Chiefs to meet on a regular basis with ministers of the Crown to talk about these issues. As a result of that, I'm anxious to know where in the federal Indian Act this minister believes that we can have any degree of protection. I've just asked for that review. I'm fairly familiar with that act; in fact, I've had the relevant sections provided to me.
I'd like to see if the minister can tell us where we can have the protection he's talking about, because he says that it is covered under the federal statutes. If we take a look at the federal statutes, which I just very quickly reviewed in the library and had photocopied, we can see that under chapter I-5 of the Indian Act, which deals primarily with possession of and legislation and jurisdiction on reserve lands, the issues that this minister is trying to introduce simply aren't there. Could the minister tell us how a community such as those in the Fraser Valley or in the interior or on the Island that may find that land is being used for the disposal of hazardous or toxic material, or which may have contaminated sites as a result of past action on those reserve lands, can have some confidence that the same rules and regulations that will apply to those non-aboriginal communities may be applied to aboriginal communities in British Columbia, especially in light of the fact that we are moving toward joint stewardship agreements on industrial activities and developments that are going to allow aboriginal people to be included in a government-to-government process, by virtue of this government's approach and direction to that question?
Hon. J. Cashore: When we get to subsection 20.4, there will be exemptions that deal with that issue.
J. Tyabji: I want to address my remarks to the minister's comment that by constitution, this government cannot legislate the first nations with regard to their land. First of all, if this government had accepted our amendment this morning with regard to the remediation plan having to file the site profile of the receiving site and the processing plan, that would have taken care of having aboriginal lands used as potential receiving sites, because this ministry can definitely legislate on non-aboriginal lands. As soon as the minister receives the plan to take the contaminated soil and move it, through their remediation plan, to aboriginal land, the minister could say that this is not an acceptable way of doing things. That would have been a simple case of jurisdiction.
The second point is that in the definition of government body, there could easily be a clause added that recognizes those areas where the provincial government has limited jurisdiction. However, we know that government body means a federal, provincial or municipal body, agency or ministry of the Crown, just by the very fact that we're listing all the levels of government. We know that the provincial government can't legislate the federal government, for example; we know that there are different line jurisdictions. All we're saying is that in the definition of government body, we recognize that a first nations government is a legitimate government body.
This government, in making that same recognition in its other legislation, is, by ignoring it here, in some strange way exempting the existing first nations jurisdiction. We know that once you get within that jurisdiction, the provincial government has limited legislative powers; however, the provincial government definitely has the power to recognize that as an order of government, which is exactly what it has done in other legislation. I don't understand why they wouldn't do it here, unless there is some inequality that's being developed where first nations are encouraged, welcomed and assumed to be part of positive processes, but where it has to do with something that might be perceived as negative, such as fines or payment for contaminated sites, we don't want to touch it, because that might jeopardize the negotiations. That seems to
[ Page 7245 ]
me to be an unequal and very unfair way of dealing with things.
Hon. J. Cashore: The hon. member referred to the concern about soil being moved onto Indian land. Section 20.81 deals with that. We'll be getting to that later. It will be able to prevent contaminated soil from being moved to reserve lands, since any such transfer would require a soil relocation agreement between the persons responsible for the originating site, the receiving site and the ministry. That is therefore dealt with in a generic sense, which is the appropriate way to deal with it.
J. Tyabji: This minister has already said that he is more or less abdicating jurisdiction on aboriginal lands. We will get to that and canvass it in greater detail, but as far as the government body section goes, would the minister be prepared to say no in the event of that coming forward? We can canvass that in that section. The whole point of having it in this definition, from my perspective, is that section 20.81 does not preclude aboriginal land being a receiving site, by any stretch of the imagination. This minister has already said that he is not prepared to interfere in something that the first nations people are pursuing, so I don't see that happening.
I still don't understand why this minister wouldn't simply include a reference to first nations. All we are asking for in the definitions is a recognition that first nations are a recognized order of government, which we know this ministry and this government have done repeatedly.
Hon. J. Cashore: The first point the hon. member made would be dealt with in a generic sense by a soil relocation agreement. The other point the hon. member has made before, and I have responded to it.
G. Wilson: I have a more technical question. If this amendment doesn't take place, what is to require the provincial government to be involved if government does include in the definition...? In this set of definitions, we are talking about "government body" including the federal government and the jurisdiction and authorities that are provided through the federal government. Given that the Indian Act requires that the federal Minister of Indian Affairs can directly intercede on behalf of proposed economic activities -- I am reading now from the Indian Act -- what is to preclude agreements being made between people involved in investments here that require them to relocate or deal with contaminated soils or materials; or even more, with respect to the disposal of contaminated materials that are being generated? Why wouldn't somebody simply relocate, through an agreement between the Indian band, the federal government and the entrepreneur, in the initial stage an activity that may be providing material that under this bill would be considered toxic? This minister wouldn't even be involved in it. Can the minister tell us why it wouldn't happen? It is already happening right now in the Fraser Valley with respect to air emission standards.
Hon. J. Cashore: The soil relocation agreement is a three-party agreement that would involve the first nations people.
G. Wilson: I understand that. That wasn't my question. My question is this: if we do not include the first nations in the definition of government body, then how can this government not be precluded from those initial investments in the first place by an investor who simply deals with the first nations government, the federal government and the investor? They could just bypass you altogether.
Hon. J. Cashore: If we don't have a three-party agreement in the soil relocation agreement, then we don't have an agreement. One possible scenario would mean that we cannot go past the border of the first nations reserve land. That is the way in which the law presently functions. We are hoping to address that through this delicate negotiating process that I have referred to. But we do not, as a provincial government, have the power to go beyond that border if we do not have a third-party agreement. That's a simple fact.
G. Wilson: I'll try once more. Let's just put soil relocation aside for the time being. Let's look at a contaminated site, industrial development and activity that is generating toxic material that requires disposal. Under this, there has to be a contaminated site designation and procedures put in place, which are spelled out through the latter sections of the bill, that provide the government an opportunity to have input. My question is this: unless you include first nations in the definition of government, what is to preclude an investor developing a project that would produce toxic material which would come under the Waste Management Act? What is to preclude the location of that initially on land that is governed by the Indian Act -- and therefore enter into a negotiation with the federal government, the entrepreneurs and first nations people without any inclusion in this act whatsoever, despite problems that may exist with downstream effects in neighbouring communities?
Hon. J. Cashore: The simple answer is that we can't. The province doesn't have the power. Recently, there was the issue of Bennett Remediation Services at a native Indian reserve in the valley. The Ministry of Environment did not have the authority to go onto that land. Therefore what we are doing at two levels -- both within this bill, with the soil relocation agreement, and in the delicate negotiations and consultations between our government and the two aboriginal bodies that I outlined -- is addressing this issue with a view to resolving it. But at the present time we don't have that authority. That is a simple fact.
What we can do, though, and what has happened.... In various instances, bands have invited the Ministry of Environment to come onto aboriginal land in the province to work on a remediation issue with them. That has been very worthwhile where that has happened, and we seek to continue to work in that cooperative way to try and get that cooperative result.
[ Page 7246 ]
I've given a very straightforward answer: we don't have the authority. In accepting this amendment, we would be giving a unilateral definition and a decision that would set back the negotiation process. We need to be doing this step by step; we need to be doing the appropriate thing.
[3:45]
I have tried very hard to respect the concern that the hon. Liberal Environment critic has identified, but I believe that I have done a more than adequate job in outlining the reasons for taking the approach that we are taking on this. We are doing everything that we can humanly do in the Ministry of Environment, Lands and Parks to work with aboriginal people where there are contamination issues in their areas. But we must have permission from them in order to go onto their land. We continue to work with them. I believe that after these processes have come to an appropriate conclusion, we will have resolved many of these issues.
Hon. E. Cull: I beg leave to make an introduction.
Leave granted.
Hon. E. Cull: On behalf of my colleague, the member for Kootenay and the Minister of Energy, Mines and Petroleum Resources, I'd like to introduce 50 students from Highlands Elementary School in Cranbrook. They are accompanied by a number of adults and their teacher, Mr. Ron Tomicki.
G. Wilson: This is my last point on this amendment, because clearly we are going around in a circle. But it needs to be clarified.
I am fully cognizant of the Canadian constitution and the definitions and distinctions within it on the authority of the province and the authority of the federal government. I understand completely that you cannot amend a bill that would essentially be counter to the Canadian constitution. I am also fully aware that the provincial government has a limited amount of jurisdiction with respect to authority over Indian land as defined in the Indian Act. I have that act in my hand. I've read it, and I understand the minister's concern. Notwithstanding that concern, the point is that we are moving into a new jurisdiction, and that jurisdiction provides for a "third order of government." In that new jurisdiction a negotiation is being made on lands that are outside the lands currently determined as reserve lands in the Indian Act.
We in the Liberal opposition are suggesting that the government needs to amend this bill to make it very clear that the rules and regulations with respect to hazardous waste management, the Waste Management Amendment Act and the amendment here -- toxic sites, relocation of toxic material, the application and determination of contaminated sites and how we deal with those sites -- should apply equally and fairly to all British Columbians. We're saying that this government should take pre-emptive action in those negotiations to make sure that in any final negotiation, no jurisdiction is created or determined within the province of British Columbia. Right now the third order of government isn't even constitutionally defined, as the minister knows; that's what last October was all about.
We have to start putting in place a regulation that simply includes in the definition the first nations as a part of government structures, so that the provincial government, the federal government and any other jurisdiction -- however it is determined by the first nations of this province -- are equally bound with respect to waste management. It's a simple, intelligent and proper amendment to make. I recognize that the minister may have a difficult time with enforcement in the initial stages. That question needs to be looked at, and we can deal with it in subsequent amendments if necessary. Clearly the definition of first nation and first nation involvement in the question of environmental assessment is included in Bill 32 because the minister is fully aware that the policies of his government are creating a third or new jurisdiction in this province, which is essentially first nations administration.
We have to make sure that both first nations peoples and non-first nations people are fairly, adequately and properly treated in legislation coming out of this House, because it could be many years before that new system is finally in place. That's what we're attempting to do, and we believe that this amendment can accomplish it.
Hon. J. Cashore: As I said before, where Bill 32 refers to first nations, it is referring to a review process and to participation in that process. This bill is land-specific, so it's an apples-and-oranges argument.
The hon. member referred to the third jurisdiction. We are moving towards the definition of a third jurisdiction and towards having it included in government statutes. We're not there yet. We will do that in due course. The hon. member made the point: how can we be discriminating...? The fact that we have this generic process that I've referred to, which is a soil relocation agreement.... As a generic process it treats all people equally, with the proviso that I identified a moment ago relating to the jurisdiction that we do not have on aboriginal reserve lands.
J. Tyabji: Just a last very brief point about this amendment. Throughout this bill there are references to government bodies, and that includes federal, provincial and municipal. What we were trying to do was to introduce into that definition the recognition of a fact. We already know that the first nations are one of the orders of government. When we get to some of the sections, such as the one on immunity and the ones with regard to responsibility, highway rights-of-way and those kinds of things as they pertain to a government body, we know that this ministry is going to be regulating federal government jurisdiction. We know that this ministry will be regulating other jurisdictions. To accept these amendments would simply be to recognize the fact that first nations government is already one order of government.
The Chair: There are two amendments to section 20.1 before the House. The first one is on the definition
[ Page 7247 ]
of "government body," and the second one is contingent on that passing or failing.
I'll read out the amendment: "'government body' means a federal, provincial or municipal body or first nation, including an agency or ministry of the Crown in right of Canada or British Columbia or an agency of a municipality or agency of a first nation."
Amendment negatived on the following division:
|
YEAS -- 6 | ||
|
Dalton |
Wilson |
Symons |
| Tanner | Anderson | Tyabji |
|
NAYS -- 39 | ||
|
Petter |
Priddy |
Edwards |
| Cashore | Barlee | Charbonneau |
| Jackson | Pement | Beattie |
| Schreck | Lortie | Giesbrecht |
| Conroy | Miller | Smallwood |
| Hagen | Gabelmann | Sihota |
| Clark | Cull | Zirnhelt |
| Barnes | MacPhail | B. Jones |
| Lovick | Ramsey | Pullinger |
| Evans | Doyle | Streifel |
| Lord | Randall | Simpson |
| Serwa | Weisgerber | Hanson |
| De Jong | Janssen | Neufeld |
The Chair: I'm going to call the question on the second amendment. I've been asked to read it, so I will read it for the record. The second amendment is: "`first nation' means an aboriginal governing body, however organized and established by aboriginal people, within their traditional territory in British Columbia."
Amendment negatived on the following division:
[4:00]
|
YEAS -- 6 | ||
|
Dalton |
Wilson |
Symons |
| Tanner | Anderson | Tyabji |
|
NAYS -- 39 | ||
|
Petter |
Priddy |
Edwards |
| Cashore | Barlee | Charbonneau |
| Jackson | Pement | Beattie |
| Schreck | Lortie | Giesbrecht |
| Conroy | Miller | Smallwood |
| Hagen | Gabelmann | Sihota |
| Clark | Cull | Zirnhelt |
| Barnes | MacPhail | B. Jones |
| Lovick | Ramsey | Pullinger |
| Evans | Doyle | Streifel |
| Lord | Randall | Simpson |
| Janssen | De Jong | Neufeld |
| Serwa | Weisgerber | Hanson |
F. Jackson: I ask leave to make an introduction.
Leave granted.
F. Jackson: In the gallery today is a constituent of mine who is here working with the Ministry of Environment, Lands and Parks, Ms. Christine Casimir. I would ask the House to make her welcome.
On section 20.1 as amended.
J. Tyabji: In the definition section of the amendment we have passed we've got the amended definitions of "operator" and "owner." The opposition is a little bit concerned about and would like some clarification on, the definition of "operator." Does it include a labourer or an employee -- someone who is neither an owner nor an operator under the Waste Management Act?
Hon. J. Cashore: I would like to ask the Chair for clarification. It's my understanding that we are debating section 20.1 as amended; that an amendment was passed at the beginning of the debate on section 20.1, which is the amendment standing in my name on the order paper; and that that amendment included this section that this proposed amendment now seeks to amend. I'm seeking direction from the Chair with regard to whether or not this amendment to a section that has been approved is in order.
The Chair: There's no amendment on the floor yet, hon. minister. The member continues.
J. Tyabji: For the clarification of the minister: although he has been provided in advance with an amendment that we're proposing, if in our questioning we get the answers we're looking for, we may not move the amendment. That is why I've asked a question on that section as amended. The question is: does the definition of "operator" and/or "owner" -- but most particularly "operator" -- include an employee or labourer who may be acting on instruction?
Hon. J. Cashore: As a general principle, this does not encompass employees.
J. Tyabji: Could the minister then point out to me where in this bill there is a reference that says the definition of "operator" does not include an employee? I haven't seen it in my reading of the bill.
Hon. J. Cashore: It's a very basic common law notion, and it's implied by the common law.
J. Tyabji: I know that when we were debating Bill 84 in the fall, we did make a distinction between an operator, an employee and a labourer. There were different classes of managers versus employees. Knowing that this government has moved toward more plain language legislation, I'm concerned that I don't see in my reading of "operator" that it doesn't include employees. If the minister will give me his assurance that it doesn't, I won't move the amendment.
[ Page 7248 ]
Hon. J. Cashore: It's a principle of common law that the legal company on the site is held liable. It is not the employees; it is the company that is held liable. That is a legal principle in common law.
J. Tyabji: Under the amended section, then, there's a new subsection added that says, "A government body is not an operator only as a result of...." and there are (a), (b), (c). Why did the minister choose to refer to "government body" rather than "person"? We'll deal with the definition of person later, but under this section, why is it only a government body that is excluded?
Hon. J. Cashore: Those words were taken out of the original definition of "operator" and moved down there for clarification.
J. Tyabji: I don't think that that could be possible, because what I'm talking about here -- and maybe I haven't been clear -- is under the amended section 20.1(c) under "operator," where we've got "...a government body is not an operator only as a result of (a) exercising regulatory authority with respect to a contaminated site" -- I can understand that's a government body -- "(b) carrying out remediation at a contaminated site, or (c) providing advice or information with respect to a contaminated site...."
Why I'm asking is that if it's a person -- as this bill is defining person -- who ends up in the position of being in the process of remediation of that site, you don't want that person to incur further liability by being considered an operator. I'm just wondering why it would only be a government body that would be excluded from incurring extra liability.
Hon. J. Cashore: For the record, I give the hon. member my assurance that that won't happen. That cannot happen, because of the provisions of the common law, and it will not happen under this act.
J. Tyabji: Okay. I'll leave that for now.
I'd like to go to the original bill on the definition of "person." I think this may be a technical problem. I'm not sure how this happened, but you've got a circular definition here that doesn't work, because within the definition of "person," you refer to person.
For example, if we wanted to put this in an algebraic equation and you let person equal X, you've got X equalling X, and it doesn't make any sense. You've got "`person' includes a government body and any director, officer, employee or agent of a person or government body." That doesn't work. Beyond that, I don't know how it deals with individuals. Could the minister clarify that for me, because that definition doesn't seem to work in terms of addressing the needs of the definition of person in the rest of the bill, at least not in the way that I've read it.
Hon. J. Cashore: This is fairly standard in definitions. For this definition it is broadly construed. The hon. member said that this does not serve the definition where the term shows up in the other parts of the bill. While I realize we should not be getting into future sections, I wonder if she might be able to share an example as to how that is the impact.
J. Tyabji: Of course, we don't have the regulations to go with this bill. But if we assume that the person who might be incurring the liability, for example, might be a farmer.... I don't know how a farmer fits into government body, director, officer, employee or agent of a person -- person, being a circular definition, goes back to the beginning -- or government body. I don't know how that fits into the bill. It seems to me to be a bit of a technical problem.
Hon. J. Cashore: This is commonsense language in the basic use of the word "person." Therefore the definition does not exclude the dictionary definition of the term "person." This clarifies some aspects of a definition that need to be clarified for the purpose of this bill, but it does not identify the dictionary definition as not applying. The common definition still applies.
J. Tyabji: I do understand that this doesn't preclude the definition in the dictionary, because it says that person includes these things. However, it doesn't go any further, and it also doesn't make any reference to an individual who may be liable. Because there's no reference to an individual being liable, it seems to me that for the purposes of the bill you want to at least state that "person" is defined otherwise.
From my perspective I'm trying to save the ministry some money in terms of legal fees. I can see a lawyer standing up and saying: "Well, you didn't include individual in your definition of `person'." Although it doesn't preclude that.... I'm sure the minister understands what I'm saying.
Hon. J. Cashore: I don't have a dictionary in front of me, but I would say an individual is included in a dictionary definition of the term "person." As I said before, this definition does not deny the definition that you would find in a common-usage dictionary; it simply adds to it.
J. Tyabji: I think that the ministry would be well advised to amend that before the end of the bill. I stated that it doesn't preclude the dictionary definition, but the way it's defined here is a bit problematic -- particularly because you have a circular definition where the word being defined is included in the definition. I'm just pointing that out. I know one of our members has run off to get his dictionary. Maybe he can help the minister out with that.
I would say that you've got enough legislative drafters in the Ministry of Environment that you might want to tidy that up a little bit. It doesn't do anyone any good to leave something like that vague enough that somebody can argue about it.
Hon. Chair, I'd like to ask the minister about the definition of a "secured creditor," which is defined as "a person who holds a mortgage, charge, debenture, hypothecation or other security interest in property at a
[ Page 7249 ]
contaminated site, and includes an agent for such a person." We were in the midst of a very complicated discussion with regard to the role of the first nations in the government body. The member for Powell River-Sunshine Coast was talking about joint stewardship arrangements. Would, as this minister has mentioned in the past, the first nations be recognized as a secured creditor in the event of industry getting into a joint stewardship arrangement on a site that may turn out to be contaminated?
Hon. J. Cashore: The definition of "secured creditor" is as stated within the bill. With regard to first nations persons, it would only be insofar as the definition found within the bill applies. Therefore we do not seek a definition that goes beyond this one.
J. Tyabji: I don't know that the minister answered the question. I'm trying to find some clarification of the role of first nations. Is this an area where they would be recognized as a "secured creditor," and how then would the ministry deal with the first nations in the event that they did fit the definition of "secured creditor," in terms of dealing with potential financial liability?
Hon. J. Cashore: If a first nation holds a mortgage, then they would fit into the definition of a "secured creditor."
[4:15]
G. Wilson: Actually, that last response elicited a question. One can argue -- and I imagine the first nations people would argue one way and there would be others who would argue to the contrary -- that if the land is under claim and there is an agreement on joint stewardship, then, essentially, that negotiation process may constitute a right or claim to some form of credit against the resources that can be extracted from the land. I assume that some form of ownership or even a lien against the property currently under development could be extrapolated. I wonder what the minister's opinion is of that situation. While there may not be a mortgage in the classic legal sense of the term as it exists in the statutes, clearly it may be advanced as though, in a joint stewardship arrangement, first nations were deemed to be in a creditor position without actually having the formal paper on fee simple title.
Hon. J. Cashore: It's a giant leap of logic to suggest that a land claim is tantamount to a charge. That is simply too far-fetched. With regard to this issue, as we said during an earlier debate, there are some very important negotiations going on between this government and the two representative groups of first nations people. The questions that they're asking with regard to these issues will be dealt with through that process.
Section 20.1 as amended approved.
On section 20.11.
Hon. J. Cashore: Hon. Chair, on section 20.11, I move an amendment standing in my name on the order paper. [See appendix.]
This amendment clarifies the scope of application of the legislation in two respects. First of all, a site profile pertains only to information which is known or reasonably should be known to the person with the duty to provide a site profile. Secondly, site profiles will only pertain to industrial and commercial properties. Site profiles will not be required in applications for building permits or temporary commercial or industrial permits.
On the amendment.
J. Tyabji: I notice that in the amendment, we have a real emphasis on industrial and commercial activity. Does this include agricultural activity? If so, under which of the two definitions?
Hon. J. Cashore: In most cases the answer is no, it won't include the land referred to by the member, but subject to the regulations, there could be some instances where there could be an inclusion.
J. Tyabji: So depending on the regulations, some agricultural land or businesses will fall under this definition. Will they be perceived as industrial or commercial?
Hon. J. Cashore: That's one category: industrial and commercial.
J. Tyabji: In the first part of the bill this morning, we spent a considerable amount of time talking about the remediation plan having to deal with a site profile for the receiving site. I would like to at least raise the point that under section 20.11(1)(b), we've got all of these sections that refer to.... For example, section 20.11(1)(b)(iii) says: "removal of soil from property that the person knows or reasonably should know is or was used for industrial and commercial activity," and section 20.11(1)(b)(iv) says: "a demolition permit respecting a structure that the person knows or reasonably should know is or was used for industrial or commercial activity...." Just as we asked in the very first section, what is going to happen to the soil or structure that has been removed? Where is that allowed for in the legislation?
Hon. J. Cashore: There's a site investigation. If it's a bad enough case, remediation will have to take place.
J. Tyabji: It's not the remediation that I'm asking about; it's the receiving site or what happens to the soil or structure under sections 20.11(1)(b)(iii) and 20.11(1)(b)(iv) once they've been removed or demolished. What happens then? Is that going to be treated as regular landfill waste?
Hon. J. Cashore: The site profile is a very early and embryonic part of the process. It's really
[ Page 7250 ]
information-gathering. The detail the hon. member is getting into with regard to what happens in situations (a), (b) and (c) is covered in future sections.
C. Tanner: When the minister introduced this extensive, detailed bill on May 19, why did he bring in such extensive amendments just two or three weeks later? It is a little disheartening to this side of the House when we look at a bill that is complicated and important, and we see an entirely different and more intrusive set of definitions just two weeks later. Could the minister explain how this came about?
Hon. J. Cashore: Hon. Chair, the question is out of order in that we're debating a specific portion of a section of this bill. But the answer is that we said we would consult; we did consult. The amendments reflect the consultation.
C. Tanner: Could the minister indicate with whom the consultations took place? Mr. Minister, you've had a year and a half in office to put this bill together. It's an important bill; it's important to every member who lives in this province. It's a little flippant for the minister to hide behind the process of this House and not explain why he should suddenly bring all these heavy-duty amendments to a bill which he's worked on for a year.
The Chair: We're kind of strained, hon. member, but the minister is on his feet to answer. But keep the questions specific to the section.
Hon. J. Cashore: The Urban Development Institute, the Bankers' Association, the West Coast Environmental Law Association and many others.
Amendment approved.
On section 20.11 as amended.
J. Tyabji: In section 20.11(3), we've got: "Subject to the regulations, an owner under the Petroleum and Natural Gas Act shall provide a site profile to a division head where the owner applies for a certificate of restoration respecting a well, test hole or production facility in accordance with section 96 of that Act." The division head is from Energy, Mines and Petroleum Resources. How does that bridge with the Ministry of Environment? To what extent is the Ministry of Environment monitoring that, and what is the mechanism for it?
Hon. J. Cashore: We're having an initial assessment by officials in that ministry to enable an appropriate interface between the two agencies of government.
J. Tyabji: In my reading of the bill, I don't see what the mechanism is. I understand the preliminary investigation is done by the division head of the other ministry. What is the mechanism for bringing it to this ministry, and how does it occur? How does the Ministry of Environment receive the site profile from the owner under EMPR?
Hon. J. Cashore: The answer is in section 20.11(5):
"A municipality, approving officer, division head or district inspection shall (a) assess a site profile received under subsections (1), (2), (3) or (4) in accordance with the regulations, (b) if the assessment of the site profile under paragraph (a) indicates that a manager should review the site profile to determine if a site investigation is required, forward a copy of the site profile to the manager, and ((c) forward a copy of the site profile to any other person specified in the regulations." That encompasses it.
J. Tyabji: No, it doesn't. That doesn't tell us at all how it gets from Energy, Mines and Petroleum Resources to the Environment ministry, because we've got a division head.... I might as well go to section 20.11(4) as well, where we have a district inspector getting the agent or manager of the owner providing a site profile to the district inspector. Is the minister telling me that when they talk about the regulations under section 20.11(5) that "any other person specified in the regulations" is therefore the Ministry of Environment? Is that correct? Or are we looking at regional managers when they talk about a site profile to a manager?
Hon. J. Cashore: Perhaps I can clarify this. If the hon. member would refer to the last line of section (b), there is a reference to forwarding a copy of the site profile to a manager. A manager is an official within the Ministry of Environment.
J. Tyabji: If the site profile is forwarded to the manager, in what way does that become something that...? We've got the site registry later on and the ministry is involved in that respect. What can we expect from the regulations in monitoring that? Is there an assessment process? Are we looking at regional managers there? Which manager is that?
Hon. J. Cashore: It is the regional manager, and it is the term as defined in the act. The answer to part of the question is in the definitions. Some of the questions the hon. member is asking would be answered more appropriately in subsequent sections of this act.
J. Tyabji: If we can assume that site profiles are being compiled around the province which are going to division heads or district inspectors of Energy, Mines and Petroleum Resources and those site profiles are being referred to the regional manager, where is the funnelling of those site profiles? At what point do the regional managers coordinate their site profiles and pass them onto the main officer? How does the administration coordinate?
Hon. J. Cashore: They have the statutory authority to make that decision in reviewing the site profile. In their professional judgment, when that work has been completed, it is forwarded.
[ Page 7251 ]
J. Tyabji: Will there be an automatic forwarding at some point in the site profiles? Later in the bill we talk about the site registries, and I am assuming in the later canvassing of the bill that the site registries will be compiling all the regional information on site profiles. Is that correct? Is that mandatory, or is that at the discretion of the regional managers?
[4:30]
Hon. J. Cashore: The answer is yes.
J. Tyabji: Under subsection (6): "A municipality, approving officer, division head or district inspector may impose reasonable fees for an assessment under subsection 5(a)." Subsection 5(a) states that there might be an assessment of a site profile received in accordance with the regulations. Are the coming regulations going to define what a reasonable fee is? How thorough an assessment will be done? Is that also going to be coming in the regulations? The reason I'm asking is that if you have a potential investor who is looking at a site, to what extent are they going to be encumbered by subsection (6)?
Hon. J. Cashore: The fee schedule will be set in the regulations. I would point out that this is a very pro forma and embryonic phase of the process. Site profiles are not expected to be highly complex, lengthy documents.
J. Tyabji: On the following page, under subsection (8):
"A trustee, receiver and liquidator or a person commencing foreclosure proceedings, who takes possession or control of real property for the benefit of one of more creditors, shall provide a site profile to the manager immediately on taking possession or control, if the real property has been used for (a) an industrial, commercial purpose, or (b) a purpose or activity prescribed by the regulations."
Under the list of people who have to provide a site profile, how will they...? If someone inherited a piece of land, ended up with title to a piece of land, or if there were foreclosure proceedings, I'm assuming that the ministry.... Does the ministry initiate the contact or communication indicating to them that a site profile is necessary? If someone inherits a piece of land, how will they know that a site profile is necessary? How will they know that by law this is something they're supposed to follow up with?
Hon. J. Cashore: Inheritance is not one of the triggers that would bring this process into effect.
J. Tyabji: I don't know how a receiver of land is defined. I assume that someone who inherits land is therefore a receiver of land. If a trustee or a receiver ends up with title to a piece of land, how will they know that they're supposed to perform a site profile on that land, particularly if the status quo is retained? How does that work?
Hon. J. Cashore: I think there's a misunderstanding with regard to the definition of "receiver." It refers to a person who has been assigned the role of receiving, following on liquidator. It's in that genre of terms. It doesn't mean somebody who has received an inheritance. When we get into the exemptions section, the point that the hon. member is concerned about will be dealt with, and it will be made clear that the scenario she is describing will not be encompassed in this net.
J. Tyabji: As I say, it is very difficult to canvass this bill in the absence of the regulations. Section 2, 20.11(10) states: "If a manager orders the preparation of a site profile respecting land that is subsequently determined not to be a contaminated site, the manager is not liable for any costs incurred by a person in preparing the site profile." I understand that the government would want to do this, but the other side of the coin is that a manager could unreasonably ask for site profiles at considerable expense to the person being asked. Is this something that will be addressed very thoroughly in the regulations?
Hon. J. Cashore: A site profile is a pro forma process that should take only a very few minutes to complete, so I don't think we're dealing here with an issue where whopping amounts are concerned.
J. Tyabji: Is a significant amount of the regulation going to outline the site profiles in more detail? Is it something that will be well defined?
Hon. J. Cashore: Yes.
J. Tyabji: This might also come up with the regulations, but I'm a little concerned about what triggers the request for a site profile. If you look at 20.11(11), it says: "Except for the duty of a vendor to provide a site profile to a prospective purchaser under subsection (7), the duty to provide a site profile does not apply if a person...." and then it lists them. How do we know that we understand when a site profile is required and when it isn't? Is it mainly at the discretion of the manager with a few exceptions?
Hon. J. Cashore: The triggers are all outlined in section 20.11. It's all spelled out. That's the purpose of the section. I think it's very clear.
J. Tyabji: Under section 20.2, is there going to be some auditing mechanism by the Ministry of Environment in the regulations to keep track of how many site profiles are being initiated and requested, and is there going to be some kind of...?
Hon. J. Cashore: On a point of order, hon. Chair. For the efficiency of our discussion we are seeking to approve one portion of section 20 at a time, and I don't think we've voted yet on section 20.11 as amended. We need to do that for clarity and to keep ourselves organized on this section. So if the hon. member is ready to move onto section 20.2, I would suggest we first of all vote on 20.11 as amended.
[ Page 7252 ]
The Chair: Your point is well taken.
Section 20.11 as amended approved.
On section 20.2.
J. Tyabji: I go back to the question with regard to some kind of internal auditing process on the activities of the site profiles and whether or not the managers will be providing some statistics to the central administrative office of the Ministry of Environment so that the minister will understand how much monitoring is going on. Is there going to be a reporting process to government on this? I hope that the minister is not trying to trivialize the role of the site profiles by saying that it's a pro forma process. We know that it's going to require some cost on behalf of the public. When you look at farmers and some of the people who might have a low ability to pay for a site profile, I think there should be some internal monitoring and perhaps an internal audit on site investigations or profiles.
Hon. J. Cashore: Section 20.21, which is forthcoming, deals with the site registry. So the question the hon. member is raising is dealt with within the bill. It is a pro forma that is registered. If the question is on the issue of monitoring, certainly the registry facilitates monitoring in the sense that it is available.
J. Tyabji: I happen to disagree, but we can deal with it in the next section if the minister would like.
I find it interesting that the minister keeps downplaying the cost of a site profile, yet in section 20.2(2) we again have a reference to the fact that if the manager orders the preliminary site investigation, the manager is not liable for any costs incurred to have the investigation and the related report, just like the site profiles. That's why I think there should be some accountability on the other side with regard to how many times the manager is requesting these profiles. If there's a discrepancy in one region as opposed to another, it might be reasonable to assume that someone is being a bit overzealous in their requests for site investigations or profiles. Is that something the ministry is considering? To what extent are they expecting people to be asking that their costs be incurred by the regional managers?
Hon. J. Cashore: Technically we should not be debating site profiles in this section, since that was dealt with in the previous section. This is the section on site investigations. The hon. member should understand that we have now made the transition in this bill from site profiles to site investigations.
However, for clarity, I would reiterate that site profiles are a very preliminary stage, and they are not costly. The very purpose of site profiles is to avoid cost, so that it can be dealt with at a very preliminary level. If there's a need to move on to the process, having received a site profile -- in a sense as an early warning that contamination might exist -- there is a need to ascertain whether or not it is warranted to require a more detailed investigation. So in the determination of the transition between site profile and site investigation, the manager has to have adequate authority, where warranted, to require that more detailed investigation. That is what this section is about.
J. Tyabji: I referred back to the site profiles as another example. But 20.2(2) states that if a manager orders a preliminary site investigation or a detailed site investigation and it's subsequently determined that it's not a contaminated site, the manager is not liable. That's almost identical to the clause referring to site profiles and a manager's liability. There should be an accountability process for the manager as well, so that the public feels some safety in the fact that there's not going to be an unreasonable number of site investigations or profiles ordered.
I will stop talking about site profiles, because we've moved on. But it's the same principle -- the point being that there should be some way of monitoring what the regional managers are doing, so that there isn't a feeling on the part of the regional managers that they can continue to order site investigations. We know that in the past there has been a preference by the government to err on the side of caution, at the expense of the taxpayers. So you could have somebody being dinged with a bill that was incurred unnecessarily. Although it is reasonable that you want to be somewhat cautious, there could be some regional managers who are a bit overzealous, as I said before. They could be taking things to an extreme.
Where is the safety net for the public so that they won't be overburdened with site investigations and/or site profiles by the regional managers? Where is the accountability mechanism?
Hon. J. Cashore: There are two things. First of all, constraints will be built into the parameters of what the manager may do, and those constraints will be built in in regulations. Elsewhere in the act there is an appeal provision whereby, if an individual feels the manager ruled unfairly, that would also be an opportunity for appeal.
J. Tyabji: For the record, I would just like to say that if the site has been proven, on technical basis, not to be contaminated, it has little to do with whether or not the manager ruled unfairly. The manager may have acted in good faith but was overzealous. Anyway, that's enough said on that.
[4:45]
Section 20.2 is another section for which we will be need the regulations in order to understand the implications of this bill for the public. I have no more questions on this section.
L. Fox: In entering into the debate on this section, I must say that I'm sure the legal profession is going to be extremely pleased that this document has come forward.
As I understand section 20.2, this would only would apply if a site profile investigation identified that a further process was needed. My only real concern
[ Page 7253 ]
with this particular section is that if I, as an innocent party, had purchased a piece a land, and because of my application to develop it a site profile indicated that there had been some contaminants there, this section of the bill really leaves it up to me to meet the costs of the investigation process. My only option would be to initiate a civil action against the individual responsible for contaminating that site, which could be extremely difficult, depending on the circumstances. Perhaps the minister would want to respond to that.
Hon. J. Cashore: That's an excellent question; it helps to clarify the process of the bill. The process is -- and again, it's consistent with this kind of legislation in a number of other jurisdictions, which we find is working well -- that you cast the net broadly and then later on you bring in exemptions. That is not in regulations; it is in the act. There is an exemption for innocent purchasers, with regard to the example the hon. member used, in section 20.4 (1)(d). It might be interesting to read that section in tandem with some of the concerns that are raised where it appears the net is cast too broadly. The purpose of the exemptions is to protect the innocent. It's a very valid concern the hon. member raises, and it is contained within the legislation.
[M. Lord in the chair.]
Section 20.2 approved.
On section 20.21.
J. Tyabji: One question that was brought up in second reading and that we have also talked about a little in the estimates is the coordination of mapping and the inventory of lands under Environment, Lands and Parks. We have the site registry here. I'm hoping that the site registry will be cross-referenced with existing Crown lands, that there will be some kind of overlapping grid, and that there will at any rate be indications of regional mapping, including contaminated sites, site investigations or the process that has been covered under 20.2. Is that the case? Will there be cross-referencing with Crown lands?
Hon. J. Cashore: The short answer is yes. Discussions are underway with the people who operate the land title system in order to facilitate that cross-referencing in the best way.
J. Tyabji: That's very encouraging, and that's a big plus. I'm not sure how to visualize the site registry. Is the site registry going to be some kind of GIS mapping system as well?
Hon. J. Cashore: It could eventually be. That technology is not in place yet, but that could actually be the way that it emerges in time.
J. Tyabji: That's also very encouraging. I hope that there will be proper cross-referencing on the new mapping system.
With regard to the regional managers' inventory of site profiles and site investigations, I'm assuming that all of these will be sent to a central registry. Will there also be regional registries, and are these going to be computer-based registries that will be modemed into a central location?
Hon. J. Cashore: Yes.
J. Tyabji: Will an information system be networked with other levels of government so that they can access the same information?
Hon. J. Cashore: The answer to the question is yes. To another question that could be asked -- will the public have access? -- the answer is yes.
J. Tyabji: I was going to get to that a little bit later. But I have to say for the record that I'm really happy to hear that there is going to be information cross-referencing, especially with other levels of government, because information on contaminated sites is going to be critical for the other levels of government in trying to keep an inventory when we deal with clean water and clean air -- things that are coming on later.
I was asking the minister about audits of the site investigations and site profiles that are asked for by the regional managers. Is there going to be some kind of statistical monitoring of how many investigations and/or profiles are requested and how many of them subsequently prove to be contaminated sites? Most specifically, will that statistical monitoring be done on a regional basis per manager?
Hon. J. Cashore: The system would be able to produce that kind of information. But the specific answer to what the hon. member is suggesting is not implicit within the act. The system could facilitate that happening at some future date, but we are not saying that that will happen by virtue of this act. I would say, however, that it's an intriguing point the hon. member raises. I think that such information could have value, and I would certainly look at that with careful consideration. It's a thoughtful point.
J. Tyabji: For the public's sake, I hope there will be some kind of audit and monitoring in the regulations. In section 20.21(5), we see that there will be "reasonable public access to information," and, quite reasonably of course, there will be some fees. I'm assuming that those will be nominal fees just to cover the costs of receiving the information. We'll have to wait until the regulations come out.
In what way will the public have access to this information? Will there be computer terminals at regional environmental offices? Will they be at the public library? If the minister is saying that local levels of government will have access to this information, will it be through computers? What I'm visualizing is a situation where computer terminals in post-secondary institutions can access the site registry.
[ Page 7254 ]
Hon. J. Cashore: The answer is yes, this will be very accessible. One of the very positive aspects of this bill is the access-to-information part. I'm pleased to hear the hon. member affirm that that is a worthwhile part of this bill. Certainly those are good suggestions. It will be accessible through access centres, Ministry of Environment, Lands and Parks offices and wherever there is the ability to gain access through modems and other such processes.
J. Tyabji: My last comment on that section is that I would hope that the ministry would use the same computer network process for land use gridding when it comes to Crown lands and the designation of land throughout the province. Obviously that's beyond the scope of this bill, but since we were on that, I just wanted to make that one comment. That's it for that section.
L. Fox: I have one or two questions with respect to process. I'm sure the minister will concur that once a piece of land is identified as a contaminated site, it will obviously devalue substantially. So one has to be a bit concerned about error in the process which puts it into the registry. Before I ask any further questions, perhaps the minister might want to enlighten us on the kinds of measures that would be in place to eliminate the possibility of error.
Hon. J. Cashore: The process that is being referred to here is covered under section 20.3. It might be better to canvass that concern at that time. But with regard to the concern about error, if he would glance at 20.3, he would realize that that is addressed there.
Section 20.21 approved.
On section 20.3.
Hon. J. Cashore: I move the amendment to section 2 of the bill, modifying proposed section 20.3, standing in my name on the order paper. [See appendix.]
On the amendment.
Hon. J. Cashore: This amendment broadens the opportunities for using this subsection's expeditious process of determining whether a site is a contaminated site. The inadvertent effect of the original wording would be to discourage minor contributors from using the expeditious process of subsection (3).
J. Tyabji: I have to say that this is a good amendment. I'm surprised to say that because, based on the flavour of the bill so far and the confrontational debate that we've had, I was kind of suspicious why that would have been removed.
Are we going to be confining debate to this amendment, or are we going to do this section as amended? We have been doing sections as amended.
The Chair: We will confine ourselves to the amendment, pass the amendment, and then debate the section.
Amendment approved.
On section 20.3 as amended.
J. Tyabji: I am concerned that under 20.3(1), "A manager may determine whether a site is a contaminated site and, if the site is a contaminated site, the manager may determine the boundaries of the contaminated site." I am assuming that in the determination of that site the manager is basing his or her determination that the site is contaminated on the investigation. Is that correct? To what extent does the manager have discretionary power in determining whether or not a site is contaminated?
Hon. J. Cashore: The manager has discretionary powers, but he is confined by the regulations pursuant to this section.
J. Tyabji: I have to say again that it is very frustrating to be debating a bill when we don't have the regulations.
Under 20.3(2)(e), the manager shall "give notice in writing of the final determination to (i) the person submitting a site profile...(ii) any municipality, approving officer, division head or district inspector...(iii) any person with a registered interest in the site...." Going back to our debate with regard to first nations, what role does aboriginal government play in this in the event an aboriginal government level is involved in some aspect of this site profile or investigation -- whether that be because they happen to have jurisdiction over the land, whether they are in a joint stewardship agreement, or whether they happen to be downstream victims of the contamination?
[5:00]
Hon. J. Cashore: If they show a registered interest in the land title office, they will receive notice.
L. Fox: I am not sure if this is the section.... This numbering system is so difficult for me to follow. Is this the section the minister referred to that would be the appropriate section under which to discuss the process?
Hon. J. Cashore: I'm not sure that I understood the question. If the question was whether this is the section that deals with the exemptions I referred to, that would be 20.4.
L. Fox: In the previous section I asked a question about the process of identifying sites that would go on the registry. The minister suggested that.... I think it was this section, but....
Hon. J. Cashore: Yes, it is.
L. Fox: Perhaps he would like to answer that question now.
[ Page 7255 ]
Hon. J. Cashore: This is the process section. The manager gives his preliminary determination; then the party is in a position to state why he or she may feel that that is an incorrect determination. It is spelled out in this section, step by step.
L. Fox: Is the minister satisfied that the process of identifying sites for the purposes of registering them is free of error, given the impacts that that identification would decrease that property's value substantially? From my personal experience, I know the difficulties in having these kinds of classifications lifted after they have been determined, and certainly in convincing the public that there is in fact no liability on a particular piece of land. Is the minister satisfied that the process will in fact deal satisfactorily with the possibility of registering a property in error?
Hon. J. Cashore: This is a carefully crafted section which gives every opportunity for a careful communication of the determination of the manager, and every opportunity for the recipient of that information to deal with the fact that they may not agree with it. So there are those checks and balances provided there.
Also, the regulations define what a contaminated site is. Making the determination, therefore, has to relate to a very clear and specific definition. So there's a baseline there upon which that kind of a judgment can be made or, if it comes to it, against which a decision can be judged. I think this provides for clarity, and it should mitigate against the kind of happening that the hon. member is concerned about.
L. Fox: One further question: what kinds of pollution are considered in cases of migration? They are dealt with in this particular section. Just to give the minister a bit more background: what about an acid lake that can be linked to one or more smelters. How is that dealt with within this process?
Hon. J. Cashore: If there was a person who was the victim of that migration -- on the receiving end of it, so to speak -- that person, the innocent party, would be subject to an exemption. The person causing the problem, however, could be dealt with on their responsibility for having caused that pollution.
Section 20.3 as amended approved.
On section 20.31.
Hon. J. Cashore: I move the amendment to section 2 of the bill, modifying proposed section 20.31, standing in my name on the order paper. [See appendix.]
On the amendment.
Hon. J. Cashore: The new subsection (3) establishes more directly and clearly a responsible person category for secured creditors. The original wording in section 20.31 and 20.4 established that secured creditors were brought into the responsible person's liability net as owners or operators, and then were given exemptions which could be lost under certain conditions. This language was difficult to understand. Representatives of the financial community suggested it would be clearer, and would lead to less litigation, if the criteria by which secured lenders would be responsible persons were stated more directly. There's no change in terms of the net effect of the previous wording versus this wording, but it is a clarification. Again, it's one of the reasons why the consultation process, implicit within every stage of the development of this legislation, has worked well.
J. Tyabji: Just a brief question. Am I to understand that the amendment to section 20.31, in adding subsection (3), has the same effect but is better legislation than the way the bill was written in section 20.4(1)(l)?
Hon. J. Cashore: That is correct. The wording in section 20.4(3)(a) will also be clarified. But that is correct.
Amendment approved.
Section 20.31 as amended approved.
On section 20.4.
Hon. J. Cashore: I move the amendment to section 2 of the bill, modifying proposed section 20.4, standing in my name on the order paper. [See appendix.]
On the amendment.
Hon. J. Cashore: Section 20.4(1)(a) clarifies that the exemption for contamination from acts of God.... I'm not quite sure why God always gets blamed for some of these acts. I see my theologian colleague over there, and I know that he and I will be able to discuss this later.
Anyway, getting back to the text, the amendment clarifies that the exemption for contamination from acts of God only applies up to the date of the coming into force of this section. The risk management branch in the Ministry of Finance advises that this is an insurable risk for which the government should not provide indemnification. Since insurance could not be purchased retroactively, this will apply only after the act comes into force.
J. Tyabji: My reading of this amendment is that it's a dramatic change from the original bill with regard to persons not responsible for remediation. By adding "before the coming into force of this section" under exemption for an act of God, the implication seems to be that any act of God after the bill is passed that results in contamination of a site is something that the person who owns the site is liable for. If that's correct, then if there is an earthquake at an old mining site where there's a tailings pond and the tailings pond cracks and
[ Page 7256 ]
contamination results, even though it's an act of God, the owner or company originally responsible for the tailings pond being in place ends up being liable. As I read this, there is no statute of limitations.
Hon. J. Cashore: What this really does is give notice that they should have appropriate insurance. This is a standard insurable risk, and the wording is clarified based on our consultation with industry.
J. Tyabji: Is the minister trying to claim that an act of God is something you can be insured against? That's my understanding of what the minister just said.
L. Fox: That's the escape clause the insurance company uses.
J. Tyabji: Exactly. As the Social Credit member for Prince George-Omineca says, an act of God is the escape clause insurance companies use so that they don't have to pay. If we go back to the specific example of a mining company, a tailings pond and an earthquake, you can't have insurance to protect against an earthquake breaking....
Interjection.
J. Tyabji: Oh, okay. I'm being told that you can have earthquake insurance. Then how does the addition of these words affect something like the specific example I've given with regard to a mining company?
Hon. J. Cashore: There were a few questions there, but to the question of whether you can be insured against an act of God, I am advised that the answer is yes. I think maybe we should call on the member for Vancouver-Langara to give us his thoughts on this from a theological perspective. The members from Nelson and Nanaimo are also very good at giving theological perspectives.
I do know the point that the hon. member makes about exclusions, but it is not generic and it is not the case in every instance. The advice we have from legal counsel is that this is a standard type of wording that should be in here to protect parties in certain instances.
C. Tanner: I've got a solution to the problem that's worrying the minister and other members of the House as to the wording in his amendment. If the Chair would accept a verbal amendment, I would move that where the word "God" appears in the text you should read the word "Devil."
G. Wilson: I think the salient point is whether or not a company, an operator or some other organization is prepared to carry insurance. In today's world you can insure against almost anything if you're prepared to pay for it, and the costs of insurance against certain actions are pretty high. I wonder if the minister could tell us why the line in this particular section that reads "that occurred before the coming into force of this section" was not included when he drafted the bill and brought it in just a few days ago, and why it is now included. What has taken place in the last few days in the thinking of this minister that's made him change that section?
Hon. J. Cashore: As part of the consultation, the risk management branch of the Ministry of Finance advised us to address this issue and clarify the wording. With regard to the general issue here, I take under advisement some of the concerns that are being raised. This can be addressed in regulations. But the language has certainly gone through the filter of careful consultation both with industry and the Ministry of Finance.
G. Wilson: The difficulty we have with this -- and it comes back to the point about insurance made by the member for Okanagan East -- is that you obviously cannot prevent an act of God, but you can try to find some means of compensation for loss, as through an insurance company, if you're able to find one prepared to take you on. That's often tough to do.
D. Lovick: You can protect against it by prudent management.
G. Wilson: I acknowledge that you can in a modern factory, a modern plant and a modern investment. You can build to new building codes and new statutes in order to protect against things like earthquake, landslide, flood and so on. You can locate in areas that are less susceptible. There is lots of geological and geotechnical information available now to provide some safeguards against those kinds of things.
But the problem is that saying "a person who would become a responsible person only because of an act of God that occurred before the coming into force of this section..." suggests that now -- notwithstanding the length of time that a particular plant, operation, tailings pond or whatever has been in place, which may have substandard equipment or equipment subjected to an act of God prior to this section -- a person who is affected by whatever act of God may occur subsequent to this bill is going to find themselves with substantial liabilities.
[5:15]
It may be very difficult -- nay, impossible -- to pay the insurance against things that happen from time to time with respect to contaminated sites. I'm thinking that pulp mills are one example. The pulp mill in my community, Powell River, is one of them. They've spent millions and millions of dollars on new holding ponds, because they were worried about the litigation that would be brought against them as a result of the old ones. I can think of several pulp mills in the rest of the province that don't have those kinds of safeguards in place.
I could also suggest that there are municipal authorities that have hazardous materials stored on site. I can think of several hazardous materials sites in the province located in areas which I can assure you are not safe from earthquake. The minister is now telling us that responsibility for the cost of litigation and the cost
[ Page 7257 ]
of any kind of cleanup is now going to fall to those companies.... That's a fairly substantial change to this bill. That wasn't there until you brought in this omnibus set of amendments after rethinking it between last Friday or Tuesday or Thursday -- whenever you brought it in -- and today.
I think the minister needs to explain. Certainly it's a question of revenue. But where is there, or is there, a provision of save harmless for those operations that are already in situ?
Hon. J. Cashore: This is to protect the innocent. There could have been risky operations where the operators should have to deal with the consequences of their action. This is to protect those who are not liable and who have not been a party to causing the problem.
G. Wilson: That underscores the point being made by the member for Okanagan East in the initial part of this discussion. There is no question that there may be a risky operation. There may be operations where, at the time the operation was in place and active, it was essentially the standard, the norm, the accepted practice. We could even argue that it might have even been recommended and approved by permit through government. I'm sure that if you look at past government permitting processes, there have been many actions and activities permitted by government that wouldn't be permitted today, because our understanding, knowledge, technology and so on have changed.
The problem is that with that line, "occurred before the coming into force of this section," it seems that this minister is now saying that those people that would generally have been protected in the previous bill are no longer going to be protected -- unlike the bill as it was originally presented. In fact, the lack of responsibility that was seen originally is going to be removed in a grandfathering. If the minister can admit that that's what's taking place, then the people of British Columbia who may be subjected to that removal.... And there is going to be a substantial additional cost. Whether or not they should or shouldn't be doing it is another argument. We all want to make sure that the environment is protected. That cost is going to be borne by those who are going to be affected by this section of the bill.
Hon. J. Cashore: That is not the case. Innocent parties will not be impacted by this section of the bill.
L. Fox: I want to be sure that I understand this section as amended. It seems to me that in many acts of God -- a flood, for instance -- the province has the ability to declare them a disaster zone and deal with them on an emergency basis. While this particular clause saves harmless the innocent victim, as I understand it, does the province still have the ability -- given a natural kind of happening beyond anyone's control -- to declare a spill or whatever a natural disaster and deal with it along the lines that we can a flood or any other such disaster?
Hon. J. Cashore: For the time before the bill, this provides the protection. For the time after the bill, it's an insurable risk.
L. Fox: I am having difficulty understanding that. I make no apologies for that, because I happen to know people who live in an area that is susceptible to floods who cannot buy flood insurance. In other areas where there are indicators that there is a high risk involved, they cannot buy insurance to cover what is classified by the insurance brokers as an act of God. Perhaps the minister can convince me by telling me what insurance companies he has talked to that would provide cost-affordable insurance coverage to look after land next to a pulp mill or next to a mine to protect them from the liability, as a property owner, for a spill created because of an earthquake, as the member for Okanagan East mentioned. I don't know of any insurance company that would take that risk to cover an act of God.
Hon. J. Cashore: The regulations will be providing guidelines with regard to this insurance question. I assure the hon. members that in drafting the regulations we will take into account the concerns that are being raised in this debate.
J. Tyabji: The minister made it very clear that the reason for the amendment was that they were advised by the risk management department of the Ministry of Finance to amend the bill in this way. We know why this amendment was included. It is basically put into place so that the government isn't going to end up having to pay for contamination that would result from, for example, an earthquake breaking a tailings pond and causing groundwater contamination; or from a flood going through a contaminated site and contaminating some water systems, as in my own riding, where we have some contaminated soil where the forestry plant was; or from a bolt of lightning striking a PCB storage site; or from a heap of used tires catching fire. We know why, before coming into force, this section has been amended.
I would like to ask the minister if there is going to be some indication of the preventive measures that the ministry is going to make with regard to cleaning up these sites before an act of God could render contamination from them. That is actually where we should be headed: preventing the contamination from occurring, rather than introducing amendments to save money -- which is important....
As I look at this I think to myself: if we were in government, we would introduce that amendment as well. However, we wouldn't do it quietly in a pack of amendments that were introduced the day the bill is supposed to be rammed through the committee stage. We would first tell industry that they can expect to have to take some preventive measures now to prevent an act of God from causing contamination, because as of the passing of this bill, the industry will be liable. That's an important point in terms of the level of comfort that people can feel. All the regulation in the world isn't going to change the wording of the bill, and the wording that we have before us now, as amended this
[ Page 7258 ]
morning, is going to mean that the liability rests with the people who own the site. I don't have a problem with that, but I do have a problem with it being put in a very quiet way. I understand why the risk management department of the Ministry of Finance would say that; it makes perfect sense, because every other part of this bill is a way for the government to try to make sure that government doesn't end up paying for it. We not only support that, we respect that perspective. What we in the opposition don't like is the way in which this is being done, because no one knows this is going on right now. It could end up that as a result of this quiet amendment, some industries are going to be very hard hit for an old tailings pond, an old PCB storage site or something of that nature that will be hit by an act of God and as a result have widespread contamination potential. They will end up having to pay for it, which isn't necessarily a problem, but they should be aware that this is what's coming out, because I don't think there's an insurance company on the planet that's going to be insuring an old tailings pond against an earthquake rupture.
I want to get it on the record that it is incumbent on the minister to now indicate to the mining association, the municipalities and regional districts that because of this amendment the liability will now rest with them.
Hon. J. Cashore: The fact that this section is here is better for the mining industry than it was before, because this protection and immunity were not there before. I recognize the point that there is going to be a need for a lot of work and consultation in developing the regulations that are going to relate to this section. We're going to make sure that the comments that are raised here are taken very seriously in that process. But let's make something very clear: without this section, we would not have the measure of protection that is put there for the industry by virtue of it being in this section. That was not there before.
J. Tyabji: Could the minister outline specifically how the mining industry is protected by the inclusion of those words in this section of the bill?
Hon. J. Cashore: The protection that exists within this section is not in the current legislation.
J. Tyabji: The fact is that if the risk management department of the Ministry of Finance recommended that those words be included, the agency being protected is the government of British Columbia, not the mining industry. I can't understand where there's any extra protection afforded by preventing future acts of God from saving them liable. I don't understand how that could work.
Hon. J. Cashore: You have to connect the phrase "act of God" with the phrase "due diligence." Where there has been an act of God and where the industry has exercised due diligence, this clause will provide a protection that did not exist heretofore.
J. Tyabji: The words that have been added are "that occurred before the coming into force of this section," so the act of God that we're referring to is one that precedes today. What that means is that an act of God tomorrow does not exempt someone from liability. Due diligence is only something that is added on as an additional clause. The way this is written, even if someone exercises due diligence, an act of God after today will render them liable.
Hon. J. Cashore: That is why they should have insurance. We're taking all these points under advisement, and they will be considered in the drafting of the regulations.
G. Wilson: Just one more comment from me on section 20.4(1)(a). Surely the minister can understand that if you add those words -- and it's not just a question of the connection of an act of God with due diligence -- and look at how this reads, it now says "a person who would become a responsible person only because of an act of God that occurred before the coming into force of this section, and who exercised due diligence with respect to any substance that, in whole or in part, caused the site to become a contaminated site...." That person, it says up here, is one of the people who are not responsible.
[5:30]
Hon. J. Cashore: That's right.
G. Wilson: If that's true, by inference it would say that whether the person has exercised due diligence or not, the people who have become the responsible person in an act that occurs after this section has come into force are going to be responsible. The difficulty we have with this is that if regulations require certain structures to be put in place that presumably are state-of-the-art and they are knocked down by an earthquake of a magnitude larger than was ever envisioned, or if some other act of God occurs, then this company is out of business.
Hon. J. Cashore: That is correct. That's why the clear implication of this section is that they should have insurance. I do acknowledge that this is a very complex issue we're trying to deal with here. We're trying to protect the interests of the province as well. But we will take these concerns and the development of the interpretation guidelines into consideration, and it will be very carefully dealt with in the extensive consultation process to be undertaken in the development of those guidelines.
J. Tyabji: This is a frivolous recommendation for amendment under section 20.4(1)(b). Perhaps the minister would like to insert the same words after "because of an act of war" to make sure that if there is an act of war in the future that affects these sites, the province won't end up paying for it.
Interjection.
[ Page 7259 ]
G. Wilson: I'm not going to bite on the bait thrown out by the member for Nanaimo, who suggests that an act of war is indeed an act of God, because all sides generally feel that God is on their side. It's an interesting concept. Both sides have a theologian in their ranks, so surely to goodness there must be some equal division of that ultimate authority.
Hon. J. Cashore: And you notice how silent we are on this issue.
G. Wilson: I only know that we have the 1-800-GOD on this side, and therefore we have a direct line. I don't know what kind of communication you have on that side.
Notwithstanding the importance of that larger theological debate, I wonder if we could come back to the more important questions in this particular bill and look at 20.4(1)(e), where it says "an owner or operator who owned or occupied a site that at the time of acquisition was not a contaminated site and during the ownership or operation the owner or operator did not dispose of, handle or treat a substance in a manner that, in whole or in part, caused the site to become a contaminated site."
Thinking specifically of a farming operation, here we have an activity where there is labelling on herbicides, pesticides and other substances that are applied to the site. Now someone could fulfil all the requirements that the Ministry of Environment put on them, and they could follow to the letter the regulations -- often federal regulations -- with respect to the application of such substances. But there's nothing in this bill that talks about due diligence or running under permit. No matter what actions were taken by the owner or operator or whether they fulfilled the permitting processes of government, is it intention of the minister to take some kind of retribution on behalf of the Crown if that site becomes contaminated? Is that the minister's intention, notwithstanding due diligence to the regulations that were in place?
Hon. J. Cashore: If the owner does nothing to cause that contamination, then he is going to have an exemption. In situations regarding farming, the instances of this act coming into play would be extremely rare. I can think of one example where a farmer in Langley allowed property to be used for the illicit dumping of substances that were collected elsewhere in the lower mainland. In the investigation of that case it was required to establish the culpability of that individual in accepting and receiving remuneration for participating in that process. That would be a very clear and wilful activity. Where that owner was not taking part in an activity that caused that contamination, then that owner would be covered by the exemption.
G. Wilson: My question concerns where you've got somebody who clearly did cause contamination, but did so through compliance with regulations. What I'm asking is whether the government is in any way culpable in that case. I recognize that the government has exempted itself, in part, from these regulations in another section of this bill. I understand that. But in the provision of licences, if he fulfils all of those things and then is deemed responsible -- because clearly the action taken by this individual has caused contamination -- is that person still able to plead exemption on the basis of a statutory regulation that was followed to the letter?
Hon. J. Cashore: The person would not be liable because of being an owner of the site. But with regard to the question of due diligence, the general tenor of the bill -- it's not covered in this section -- is that a person is not exempted by virtue of so-called due diligence.
G. Wilson: That was the answer I was looking for. That's quite clear. Take a fish farm, for example, where there is an occupation on a site that has been there for a number of years: there have been applications of all kinds of materials into the water, they now have a contaminated site in terms of the subsurface area, and the eel grass has diminished. Notwithstanding the fact that it was a permitted process and that due diligence can be demonstrated in terms of the activity, in accordance with a business plan, this ministry is now saying that that person cannot use that as an excuse not to be deemed to have been responsible for contamination. I think that's what the minister said.
Hon. J. Cashore: Yes, that is correct. It is the polluter-pay principle.
G. Wilson: If we could move on, I have a couple of other questions on this section. As the minister knows, we were pressing very hard for the inclusion of aboriginal first nations in the definition of government. In a rather strange quirk of fate, the members opposite decided to vote against the first nations being deemed a government in this particular bill, although they have voted in favour of it in every other bill. In fact, they voted against the very definition they have written and included in other bills, because it doesn't apply to this bill. It's a strange contradiction to have the members opposite voting against their standing government policy.
In discussing the question, the minister alluded to this section. He said that section 20.4(1)(g) took care of our concerns. How does 20.4(1)(g) take care of the concern with respect to aboriginal involvement in this bill? What exactly was the minister talking about?
Hon. J. Cashore: Under the present definition, the federal government is the government body presently responsible for Indian reserve lands.
G. Wilson: So when he said it was taken care of in 20.4(1)(g), the minister was saying that the federal government -- under the Indian Act, which is not specific with respect to any kind of legislative authority or power -- is what this government would hang its hat on if we were trying to get protection. Do I understand that correctly?
[ Page 7260 ]
Hon. J. Cashore: Yes. I think the answer to this is in the context of what I said earlier: there is that line that provincial jurisdiction cannot pass. That is a problem, but we have to be very straightforward and recognize that that line is at the border of Indian reserves, for which the federal government is responsible at present. We are involved in negotiations with the two major aboriginal bodies in the province in order to deal with a number of such issues. We expect that government legislation will address the issues once they have been dealt with in those negotiations. In the meantime, I have recognized on many occasions, in this context and in other contexts, that it behooves this ministry and the people who are administering this legislation to work in a cooperative and consultative way with those first nations to try to encourage the kind of experience that we've had in some applications, where the aboriginal people have invited us onto their reserve lands to help them remedy a situation. But we do not have the authority at present to require that we be able to go onto their land and exercise that jurisdiction.
G. Wilson: I acknowledge the constitutional restrictions on this government; I don't want to go back through that whole debate. But I do want the record to show quite clearly that we understand this ministry and this government's inability to go directly onto aboriginal reserve lands. We are not arguing that, and we have never argued that. But activity on those lands may create a leaching problem, which in many instances could be found downstream off that land. In a hazardous waste disposal site, for example, you can have atmospheric pollution from contaminated site materials where incineration is part of hazardous waste disposal. That atmospheric pollution happens in areas over which this government does have jurisdiction.
My last comment on this, to underscore the point, is that it is precisely the same shared relationship that we're arguing should have been included and, in fact, is not included even in this subsection (g). That is a shared responsibility and obligation that this Ministry of Environment has with the federal Department of Environment today, with respect to the permitting of dump sites in Georgia strait and Howe Sound. While it is clearly a licensing authority of the federal government, it can't happen without the permitting process of the provincial government. It's that kind of shared relationship we expected to see.
Notwithstanding this minister's comments that that's taken care of in section 20.4(1)(g), the fact is that when you read this carefully it is not taken care of at all. This is a major loophole in this bill; it's a major problem. Mark my words: this is going to be something that this government is going to have to deal with in the coming months.
J. Tyabji: Since we have reached the section where we start to talk regularly about due diligence, I think it's important to note for the record that we're extremely concerned. In the absence of the regulations, we're not comfortable knowing what the parameters are for due diligence. Although in examples such as the fish farm analogy, one can understand that the polluter-pay principle has to be upheld, the other principle that has to be upheld is that it is extremely unfair to have retroactive, punitive legislation if someone acted within the letter of the law as the law was written at the time. That's a big problem, because although there's no question that there is that polluter-pay principle, where do we draw the line with respect to due diligence and with respect to someone who is acting in bad faith?
[5:45]
This comes up most particularly in the agricultural sector, where we will see residual accumulations in the soil and/or in the water, and there could be groundwater problems even with someone following the letter of the law. I'm not one to be a pesticide advocate by any stretch of the imagination. However, I do recognize that there was a time when DDT and 2,4-D were permitted. Who knows? Sometime in the future gypsy moth sprayings may be unacceptable. However, to what extent is due diligence going to be recognized in applying the regulations against individuals?
One example I could use is that in the Okanagan we still have DDT in the soil. If you test a sample of sand from the lake you will find DDT, yet it hasn't been used for about 25 years. To what extent are we going to say that the farmers -- they're the ones who used the DDT -- are collectively liable to clean up the groundwater and/or the soil, when they exercised due diligence and acted within the letter of the law at the time they applied it? The minister says polluter-pay. Technically speaking, the users are responsible for the DDT that's currently in the sediment of the lake, but by this principle who is going to pay for it, when they exercised legal caution at the time?
Hon. J. Cashore: It's incorrect for the hon. member to say that there is no due diligence within this act. In this section there are descriptions of exemptions which do imply the due diligence principle. It is true to say that the principle of this act is not to espouse due diligence. That is why I said that we cast the net broadly and then identify the exemptions very specifically. I think that's the appropriate way to do it in the interests of the environment and the taxpayer, to ensure that the land is properly cared for and that the taxpayers are properly protected.
J. Tyabji: I don't know whether the minister was listening. At no point did I say that due diligence isn't addressed in this bill. Quite the contrary. What I'm saying is that we don't have the regulations to define some of the parameters. I'm concerned that we're putting polluter-pay in a higher category than due diligence. Yes, we have to protect the taxpayer from contamination cleanup costs, but we have to recognize that the government permitted those activities in the first place. The activities were legal; they were permitted. In fact, in some cases, through the Ministry of Agriculture, there were policies of the government in place. Parts of this bill that we will get to later very clearly show that the government itself is exempted, if it followed its own laws, yet individuals are not exempted when they follow the very same laws. With
[ Page 7261 ]
regard to due diligence versus polluter-pay, it's very difficult -- and it should be on the record -- to access the degree to which we agree with the government when there are no regulations in place to give us a better definition of both of these.
Hon. J. Cashore: Government bodies are not exempted if they cause contamination. It is not correct to say that these exemptions are mainly subject to regulation; they are not. Parts of the bill are subject to regulation, but these exemptions are very clearly identified. It is there in black and white for all to see. The exemptions are very clearly defined, and I think that the list of exemptions is appropriate.
L. Fox: I have a question with respect to section 20.4(1)(g), which suggests that a government body involuntarily acquires an ownership interest in the contaminated site. I would assume that that covers a site where the company may have gone into bankruptcy and the financial agency doesn't wish to pick up that site because the value is less than the losses incurred by allowing the property to go back to the community through a tax sale. Is that kind of situation covered under that clause?
Hon. J. Cashore: This section protects, for instance, municipalities. The point is to ensure that the taxpayers are not left dealing with the expense of an orphaned site. Having provided that exemption and protection, it then affirms the principle of the bill, which is joint and several and absolute liability. In other words, this means that the body that the bill refers to in this case would have the opportunity to go through the process of the bill to ensure that the polluter pays, which is the way it should be.
L. Fox: I have just one final quick question. I believe there is another section of the act where we can talk about the process that the municipality has to go through in order to make the polluter pay. The one question I have really pertains to the earlier discussion about an act of God and what occurs. If an individual is not exempted, has not been able to acquire insurance or hasn't acquired insurance and is found to be responsible for a contaminated site, will that individual or corporation have the opportunity to be in charge of that remediation, or will they only have the opportunity to pay for it?
Hon. J. Cashore: The answer is yes. In fact, one of the benefits of the structure of the bill is that it encourages independent remediation; where it is dealt with in that way, it saves government the cost of having to do that. Again, that's one of the fiscally responsible aspects of this bill.
With that, I move that the committee rise, report progress and ask leave to sit again.
Motion approved.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Committee of Supply A, having reported progress, was granted leave to sit again.
Hon. M. Sihota: I move that the House at its rising stand recessed for five minutes.
Motion approved.
The House recessed at 5:55 p.m.
The House resumed at 6:05 p.m.
Hon. M. Sihota: I wish to advise all hon. members that Committee A will meet this evening to deal with the estimates of the Ministry of Transportation and Highways in the Douglas Fir Room.
Hon. Speaker, I call second reading of Bill 21.
CONSUMER PROTECTION STATUTES AMENDMENT ACT, 1993
Hon. M. Sihota: As Minister of Consumer Services, I am pleased to commence second reading debate on amendments to the consumer protection statutes. These changes represent the most significant improvements in consumer protection and the most comprehensive changes with regard to consumer legislation in British Columbia in the last ten years. It is a reflection on the kinds of consumer problems we have witnessed in British Columbia and an effort, through legislative action, to deal with many of the common complaints that we receive at the Ministry of Consumer Services.
This legislation is designed to meet the new, emerging needs and issues on car lots, at doorsteps and even on the computer screens of the B.C. marketplace. Strengthened protection for consumers and ensured business credit accuracy are the main thrusts of the amendments. With regard to consumer complaints, we receive more complaints in the automobile sector than in any other sector of consumer activity within the province. Action clearly needs to be taken with regard to protecting the consumer interest as it relates to transactions involving automobiles. A whole host of changes are proposed in this legislation and are also under contemplation by the ministry with regard to future initiatives. I will, of course, only talk about matters that fall under the provisions of this legislation.
In general, the bill will directly affect consumer protection in motor dealer transactions, the purchase of new, used and leased goods, and door-to-door sales. Further, businesses will now be assured of their right to complete and accurate information with regard to credit reports, an area where the ministry has received several complaints over the last few years.
I made some comments earlier about automobile dealerships. In the last few years in British Columbia, several motor dealerships have gone out of business, leaving customers without vehicles and without money. It would seem to me that....
[ Page 7262 ]
Interjection.
Hon. M. Sihota: I see that there is a dealer -- who I hope is not speaking from experience -- who is knowledgable in these matters and appreciates the need to make sure that customers who don't have possession of a vehicle don't have their money in the possession of a company that becomes insolvent. Examples of the situations we have experienced include purchase of new vehicles, vehicles sold on consignment, sales of used cars by consumers and the purchase of used vehicles with liens.
The amendment to the Motor Dealer Act will replace existing motor dealer bonds with a motor dealer customer compensation fund and a board to administer the fund. The range of claims that qualify for compensation under the bond system that we now have in place is very narrow. Further, where a large number of consumers make claims against a single dealer, the individual motor dealer bond of $15,000 is inadequate and inappropriate for today's marketplace. In other words, right now the maximum exposure for any automobile dealer is $15,000. The maximum benefit to any consumer with regard to these transactions is $15,000, in that a dealer is required to post a $15,000 bond. But where these kinds of problems arise, the $15,000 doesn't go very far in covering the needs of consumers who have made a down payment and don't have a vehicle in their possession.
By pooling dealer contributions instead of limiting them to individual dealers, the fund will be better able to compensate consumers within the prescribed limits established in the legislation. In other words, this fund is similar to the travel assurance fund established by the Ministry of Consumer Services as it relates to problems dealing with consumers who become stranded because an airline company goes under. Travel agents in British Columbia pool into a fund, and that is then utilized in order to bring back people who may be stranded or left holding a ticket that is worthless because of the insolvency of a company -- for example, in the travel agency area. In the travel agency situation, the fund allows a registration system and allows for contributions to come from that pool for compensation to consumers who suffer as a result of the failure to deliver travel services. In the same way, we will be establishing a motor vehicle customer compensation fund under this legislation to protect the interests of those who acquire vehicles and who find that in the case of the purchase of new vehicles; vehicles sold on consignment, which clearly happens from time to time; the sale of used cars by consumers; and the purchase of used vehicles with liens.... Consumers will have access to this fund -- a significant action on the part of government, which I know is long overdue.
This legislation also proposes three amendments to the Sale of Goods Act, which will also improve protection for consumers who lease or purchase used goods and suffer loss as a result of retailer insolvency. In that vein, let me say that leases, in particular, have been the source of many recent consumer complaints to our ministry. Car leases are often three to five years in length, and even when vehicles are defective, the consumer cannot get out of the lease contract. We find that people come to the Ministry of Consumer Services upset because they have entered into a contract to lease a vehicle and they paid under that contract expecting to have goods that are not lemons, that aren't defective. Yet under the current scheme, vehicles can be defective and the consumer cannot get out of the contract. Under the changes we are proposing, leased goods will now be covered by the same standard warranty that applies to purchased goods, and consumers will no longer be required to make regular payments for defective goods. So they will no longer be required to make lease payments for a car that doesn't work. Like I say, we've received a lot of complaints in this area.
The Sale of Goods Act imposes a number of warranties on retailers in British Columbia, which are usually waived for used goods. One warranty that retailers of used goods will no longer be able to waive is that which gives the purchaser the right of title. Therefore consumers will not lose goods or pay for them twice if encumbrances are later identified. This will benefit consumers of used cars who have been unprotected from loss if the vehicle is found to be encumbered. Motor dealers will be obliged to be vigilant in checking used vehicles for encumbrances or risk being held liable.
We have had situations in the past of people acquiring a vehicle when there has not been an adequate title search done by the company involved. They have paid for the vehicle only to find that there are encumbrances attached to it -- such as liens or a mortgage, if I can put it that way -- which obliges them to make further payments or lose the vehicle. It must be a frightening experience for someone to acquire a vehicle and then find that there's a lien attached to it. And after having paid the money in good faith, they find that they stand to lose the vehicle. The change we are proposing here with regard to the Sale of Goods Act will make sure the consumers do not lose goods or pay for them twice if an encumbrance is later identified. It clearly forces motor dealers to be far more vigilant than they have been in the past in dealing with these kinds of situations.
Interjection.
Hon. M. Sihota: The hon. member opposite would suggest that there haven't been a lot of problems in this area. Given his experience as a car dealer, I'm sure that he would be more than happy to speak to the matter in debate. But as someone who must have participated in dealing with the industry at large, he must be well aware that we as a government have had these kinds of situations come to us in the past, and hopefully they won't in the future, because we're bringing forward these changes.
[6:15]
Interjection.
Hon. M. Sihota: The hon member asked how many incidents. I'd be happy to give him the number. You would be surprised how many there were; it's
[ Page 7263 ]
astonishing how frequently they occur. There have been several cases in British Columbia where consumers were unable to acquire the goods they paid for or have their money refunded when a retailer went out of business.
A buyer's lien was first proposed by the Law Reform Commission in 1987. This amendment and this legislation will give secured creditor status to customers who pay for a good on the condition of later delivery. If the seller goes bankrupt prior to delivery, the consumer currently lacks the clout to receive those prepaid goods. They will now have the same status as a secured creditor -- let's say a bank -- and all the powers that come with secured creditor status. That is, they will have the same powers that banks have to be able to secure goods which they have paid for but have not received because an operation went out of business.
With regard to the amendments to the Consumer Protection Act concerning door-to-door sales, I'm pleased to say that B.C. will now be in line with all other jurisdictions in Canada. All direct sellers will now be required to apply for a licence and file a bond or letter of credit with the ministry. This legislation will be of immediate benefit to consumers who are vulnerable to the hard-sell tactics frequently used by fly-by-night direct sellers. We've had quite a few cases in the past where, in particular, seniors have been subject to these kinds of operations. Someone shows up at their doorstep and says: "I think your roof needs fixing. For $4,000 we can do the work." It turns out that either the work is defective, or the individual never shows up and takes off with the deposit that they said was required from the consumer in order to buy the materials necessary to do the work. Because there is no licensing with regard to door-to-door sellers and no requirement for identification, quite often the consumer who has been taken doesn't know where to go. At the same time there is no bond to which they can seek recourse. Now, however, they will have to apply for a licence and file a bond or a letter of credit with the ministry.
The ministry will have the authority to impose conditions, refuse, revoke or suspend, a licence which also must be produced on demand. Although sales contracts with unlicensed sellers will not be binding, consumers are encouraged to check into companies they are not familiar with. In the area of direct marketing, as I say, homeowners continue to experience serious problems with dishonest renovation companies which operate door to door. Many of these homeowners are seniors and are defrauded of large amounts of money for unnecessary repairs at unconscionably high prices for goods and services. We're confident that these amendments to the Consumer Protection Act to regulate door-to-door sales through licensing will help reduce the incidence of this type of activity.
An amendment to the Credit Reporting Act will directly affect business and should particularly benefit small business. We've had a lot of complaints from small businesses with regard to the need to bring about these changes. Although businesses have access to the information on their credit report, they have in the past been unable to determine the sources of the information and to whom the reports have been issued. This clearly impacts on their ability to correct information and may have an impact on their ability to secure credit. This new legislation will give business the right to access this information, and to place on file a 100-word explanation where their file is inaccurate, incomplete or requires further information. Credit reporting agencies will now be obliged to investigate, correct and update all reports issued in the preceding 12 months if a business contests the information in that file. Should an agency fail to meet this obligation, the registrar of reporting agencies will have the authority to order them to do so.
I have received representations from MLAs from both sides of the House with regard to the need for this type of change to the provisions of the Credit Reporting Act. I want to go on record to thank those members of the Social Credit and Liberal caucuses who have brought this particular concern to my attention. I think that with the provisions and the changes that we have brought forward, we are going a long way towards addressing the concerns they have articulated. Of course, if we haven't adequately done that, I look forward to any comments that they may have to better improve this protection, either during second reading debate or when we deal with these amendments in committee. I think we all agree that thiis protection is required for small businesses.
In summary, these amendments to four acts, the Motor Dealer Act, the Sale of Goods Act, the Consumer Protection Act and the Credit Reporting Act, are timely for the rapidly changing marketplace in B.C. Consumers are demanding better legislation to guard against erosion of their rights in this volatile marketplace. Businesses are demanding the right to accurate information. These amendments address those issues and put B.C. in the forefront of progressive consumer legislation.
G. Farrell-Collins: First of all, I would like to commend the minister. After many years, I'm sure, of these issues being rolled around in the consumer ministry -- these aren't new issues; they've been around for ten to 15 years in some cases -- I congratulate the minister for finally bringing them forward. The bill is full of good intentions, and the minister has attempted to some extent to try to solve many of the problems that exist as far as consumer affairs are concerned, for both individual consumers in B.C. and small businesses particularly, and other organizations.
I do, however, have some problems with certain sections of the bill. Certainly we'll be canvassing those in committee stage and looking at each section clause by clause, analyzing and questioning on some of our concerns. As I say, these issues have been around for ten or 15 years. The minister has dredged up these issues and brought forth legislation that I know has been around in the back rooms for some time. He has dusted it off, put it together into one package and brought in this piece of legislation. Some of the sections are timely. All of them deal with serious issues and need to be addressed. However, some parts of the legislation indicate quite clearly that this is old legislation. It isn't
[ Page 7264 ]
progressive, and it won't achieve what we need to be achieving now. There are many opportunities to improve the legislation, and I intend to take the minister up on his request and his opportunity for the opposition to provide suggestions.
In the area of direct sales, I agree with the minister that it is a big issue. It's a big concern to many people, particularly elderly people, who tend to be the targets of a small number of unscrupulous door-to-door high-pressure salespeople who are quite often selling poor-quality workmanship at highly inflated prices on jobs that maybe didn't even need to be done. That certainly is a concern, and it's something that the government quite rightly should be dealing with. It's the type of protection that should be granted. However, we have to realize that just bringing in legislation isn't going to be enough. We have plenty of legislation in this country that deals with consumer protection. The problem is that none of it -- or very little of it -- is being enforced. If there is no recourse and no patrolling of it, then all of the good intentions in the world don't amount to a hill of beans to the person who has just been ripped off by some con artist who's flying through town. While the minister has good intentions and has tried, I believe, to address these issues, there are some areas where he needs to improve the legislation. The issue of enforcement is paramount. As I've said, all the legislation in the world isn't going to do anything unless we can enforce it, and enforcement has been severely lacking over time.
I have a number of concerns, particularly in the area of direct sales. It's no longer just door-to-door salespeople who are perpetrating this type of scam and con. It's telemarketers. It's people selling by fax. Technology is being used to sell goods and services to people who never have a chance to see the person they are dealing with face to face. Crime is advancing at the same pace as, if not faster than, technology. The minister perhaps missed a golden opportunity to address the issues of direct marketing and telephone marketing and come up with some concrete methods of enforcement. We intend to attempt to deal with that at committee stage and to bring forth some suggestions for the minister at that time. I hope that legitimate, timely and progressive concerns can be dealt with in this bill, given how long it has taken for consumers in the province to finally get this legislation brought forward. Not necessarily through any fault of the minister but through a series of governments, it's been a long time. It's important that if we're going to deal with it, we get it right the first time, because it may be another five, ten or 15 years before this type of legislation comes forward again. I hope that we can deal with that.
The second area of the bill, as the minister said, deals with the Credit Reporting Act. Again, this a problem that I'm sure all members of this House have been confronted with through constituents, particularly in small businesses, who don't have the same recourse through their credit rating that individual consumers do. Individual consumers can go to a credit reporting bureau, request their file, look at the information, issue comments and go back to the sources to rectify and clear that up. That's something that is only fair. Unfortunately, small businesses and corporations have not been provided with that same opportunity. Many times, as we know, businesses fluctuate up and down. There are good times and there are bad times; there may well be rough times, and it is important that those businesses be allowed to make it through those rough times and be able to know what their standing is with their creditors and know what other lines of credit they will be able to secure when they go to the bank
If there is erroneous information on that credit report, they should be able to file a statement explaining what took place at the time and why the information is erroneous. Also, they should have the recourse to go back to the person who has made that report and deal with them to try to sort those differences out so that the company, business or partnership can go on to access further credit, expand and provide those jobs that we all want to see. Those changes are good, long overdue and merely rectify a longstanding injustice. The business community will be very glad to see them.
I suppose the area that gives me the greatest concern is the changes to the Motor Dealer Act and the Sale of Goods Act -- the Motor Dealer Act in particular. I really think the minister has become aware -- certainly in his term in opposition, but also since taking over the Ministry of Consumer Services, I'm sure -- that there are a great many people out there who had and still have problems with motor vehicles. Aside from the homes that people choose to purchase and live in, a car, truck or whatever is probably the second-biggest expenditure that somebody makes. It's a fairly large commitment. Some vehicles go up to $30,000 now. I only know that because I hear about it, not because I'm able to afford one.
L. Fox: They get a 10 percent tax, too.
G. Farrell-Collins: That's true. The government now gets a 10 percent tax on them.
It is a substantial investment. Consumers have to be assured that they're getting the product that they ask for and are expecting to get, and if they're not getting it, that they have recourse. Hopefully, we can try to deal with that upfront, before the purchase is made, the person drives it off the lot or away from Joe Smith's house, takes it home and finds out they've got a lemon. Hopefully, we can deal with that ahead of time, but this legislation doesn't allow for that. The minister is focusing his attention strictly on motor dealers. That may be a small part of the problem, but most people in business are not unscrupulous. The vast majority of the motor dealers who I have dealt with are honest people who have been there for a long time, work hard to ensure that they satisfy their customers and are willing to rectify problems if they occur. There is the odd occasion where that is not the case and somebody comes into town, sets up shop, is gone in a year or so and the city is littered with imported lemons that have come from somewhere and nobody seems to be able to trace them and they're full of liens, etc. Occasionally that happens, but not a great deal.
[ Page 7265 ]
One of the big problems that the minister has failed to address is sales that take place between individuals. Somebody goes out, looks in the classified ads, finds a vehicle, goes to somebody's house, purchases it, gets it home and then finds out that they've got a lemon. Those are the real problems that are out there and need to be developed. There is no recourse, aside from going to the courts directly. There is no fund; there is no business reputation or future business that is likely to be lost. That is where the tendencies to scam people or sell defective products are the greatest; that's where those tendencies exist and are most inviting. The minister has failed to deal with that.
[6:30]
One of the things that we've tried to do, and one thing that I've done through a private member's bill that is on the order paper -- which the minister may choose to look at when he's looking for constructive suggestions -- is a vehicle transfer package. It has been done in other jurisdictions. It goes with each vehicle. As an individual, if I choose to sell my car, motorcycle, motor home or whatever, I have to comply with the same process that a motor vehicle dealer does -- somebody who has a business and makes a living that way. That is to go to ICBC, the motor vehicle branch or whatever system works best for British Columbia, and for a small fee -- $20, or less -- purchase a vehicle transfer package that I have to have when I'm trying to sell the vehicle to someone else. It would include a list of owners, odometer readings and any outstanding liens and accident records from ICBC. These are things that we can do. They are not going to solve all the problems, but they are going to be far more progressive than what we see here. They are going to attempt to address those problems.
Of course, a side benefit is that the Minister of Finance won't have to put all this tax burden on the motor vehicle dealers of the province. He can spread that tax much more evenly around the province on all vehicle transfers at a lower level, so that those people who are managing to scoot by and not pay the appropriate tax are going to find that much more difficult to do. That taxation level will then be lower and more evenly spread among all people who are selling and purchasing those vehicles. The advantage of that, of course, is that we wouldn't have to have the type of legislation that we've seen in this session, which puts fairly punitive taxes on the motor dealer industry and has been very disruptive in the last while. These are some suggestions that we want to bring forward -- things that the minister could do to amend this legislation to make it more proactive and progressive.
The idea of a motor vehicle assurance fund is not new, either. It's been around for ten or 15 years; it's something that's been kicked around. It goes part way along the road to rectifying some problems. Certainly, the good intentions are there; the minister's intentions are clear. But again, it's a very small step toward solving these problems. When more positive, larger steps are available to the minister in much more progressive legislation, I think that he should take a serious look at them and come back with amendments to these amendments and try to bring in something that's more progressive. I hope that the minister will take that to heart and do it.
The last point I want to make on this section dealing with motor dealers' amendments has to do with this consumer assurance fund, or whatever it's going to be called. It's a reactive piece of legislation and a reactive process. You already have to have the car at home and it has to be broken, or the dealer you've bought it from has to already have gone out of business, before you can access this fund. What we should be looking to do is set up a system whereby you know what you're getting into before you purchase that vehicle. You know what the history of that vehicle is. You're less likely to be swindled; you're less likely to have false information given to you. It's easier to research that vehicle and know what product you're actually getting before you lay out your money and take the vehicle home. These are things that we would like to see and will certainly be talking about in committee stage.
I don't have too much more to say. The last issue is with the buyer's lien provision. It's a good plan, I think. I hope it works. We'll have to examine it in committee stage. We do have some concerns that we want to look into, and questions we want to ask about the relation of the buyer as a secured creditor to other secured creditors -- where they fit on the totem pole of who gets what in the event of insolvency, so that we know what the ranking is and what level of protection is really there. Those are important questions.
With that, hon. Speaker, I'd just like to summarize. While I think the minister is moving in the right direction, he's failed to deal with it in a progressive way. The minister has managed to dig up some old legislation, dust it off and introduce it. I hope that, if he hasn't already, he would be willing to take the time to bring in the type of recommendations and amendments which we'll be bringing forward in committee stage -- and which, I'm sure, members of the third party will also want to bring forward.
With that said, I will take my seat. I look forward to hearing the comments of other members and examining this bill in much greater detail in committee stage, where we will have a chance to offer those constructive suggestions in the form of amendments and have a chance to hear the minister's plans for improving this bill, which was the invitation he extended to us.
L. Hanson: I have no serious problems with what I believe the minister is intending to do. If I had to put a label on this bill, other than the one that is there, I would probably say something like: "Trust me." While the minister is suggesting that there are all sorts of protective measures in the bill, in the case of the Motor Dealer Act, it is giving the Lieutenant-Governor-in-Council all sorts of authority to put things in place that we don't really know anything about. While I suspect that the minister's intentions are good and moral, the people involved in the industry might want to know some of those things before they endorse the bill.
To speak to the different sections of the bill, the Credit Reporting Act is really nothing very serious, in that it gives businesses some opportunities that have been the practice in any case. Having had some small
[ Page 7266 ]
experience in that area, there has been very little difficulty with business and the credit reporting procedures. But I see nothing wrong with making the same things available to businesses that are available to individuals. I'm not sure that I have heard of a real protection problem in the consumer credit reporting process. Be that as it may, I don't have any strong feelings about that.
The minister referred to the travel assurance plan in talking about the Motor Dealer Act. I am not trying to be anything but honest with the minister in this. I hope he doesn't simply relate the difficulties that can come up in the automobile industry to dealing with difficulties that might come up as a result of non-delivery of some travel package. It's a totally different world, and we need to know some of the specifics the minister has in mind, such as what kinds of claims are going to be accepted for adjudication. There are no definitions of that in the act at all. It simply says that the Lieutenant-Governor-in-Council can establish those things as they see fit. What is the cost of this?
I might just add that the idea of self-insuring the automobile dealers was started about three or four years ago, and I fully support that. I think it is a good principle that the industry be self-policing, provided they are self-policing with the right regulations and rules in place. I certainly have no problem with that and would endorse it. I disagree a little bit with the minister that the $15,000 bond is not adequate. In 99.9 percent of the claims, there haven't been claims that exceed the $15,000 bond. But in some circumstances that has happened, and maybe for the protection of those few it is needed.
I don't know who it was, but someone once said that laws are made for probably 1 or 2 percent of the population, because most of the population is law-abiding and really doesn't need those laws. But that's the way our society works, and I have no problem with putting that in place. I can support the theory of self-policing and the theory of contributions to a fund as opposed to a bond. But I have to say, quite honestly, that I can't support the bill in the sense that it has now. I hope that when we go through committee stage of the bill, we will get some clarification of the intention of some of these clauses that suggest the Lieutenant-Governor-in-Council has the right to put, and will put, those regulations in place. Those are the meat of this act and will show whether this act is fair and reasonable to everyone.
There certainly is a need to protect the consumer -- there's absolutely no doubt of that. In fairness, though, reasonable and proper protection for the automobile dealers is also needed, because they're a legitimate part of our society. Until we see the specifics on claims and how they are going to be adjudicated, how the board is going to be made up, the amount of money that might be required to fund this, if contributions to the assurance fund recognize people with better-than-average records --those sorts of things -- it's going to be very difficult to make an assessment whether this is a fair and reasonable piece of legislation.
I have some questions about the amendments to the Consumer Protection Act, but I generally don't have much difficulty with the principle behind them. I heard the minister suggest that the amendments to the Sale of Goods Act gave the opportunity to put a lien in place for future delivery of goods. I think the minister needs to know something about the automobile industry to know if that's a practical recourse to protect the consumer. If somebody leaves their car for sale, and the dealer sells the car but the person can't get the money -- as long as the dealer hasn't gone bankrupt or something -- there may be some protection. But there are so many cases where somebody orders something and puts a deposit on it, but there isn't anything to attach the lien to because nobody knows what the particular unit is going to be until the unit is delivered. I'm sure that we'll get into those issues as we go through it section by section in committee stage, and I'm sure the minister will be ready and willing to look at some amendments that we may present that would, in our opinion, give a better understanding of what the bill truly is going to do.
[6:45]
As I said earlier, the most significant issue that I find with the bill is that it is simply an enabling act for the Lieutenant-Governor-in-Council to make rules, and we don't know what they are. Before the minister should expect the industry to support this kind of legislation, he should give it an opportunity to look at what those specifics might be. So I look forward to committee stage of the bill, and hopefully we will then learn some of the specifics that are missing now.
L. Fox: I actually hadn't intended to speak, because our critic in this area has extensive experience in the automobile business and is certainly able to articulate the concerns that I and our caucus see with this legislation. I was, however, quite concerned about the emphasis that the minister put on problems within the auto sales industry. There seemed to be the suggestion that that business was less than credible, in terms of the industry.... I guess it almost prompted me to think that perhaps the word "unsavoury" almost came out of the minister. That concerns me because I've been in the business for about 13 years. I know many, many individuals in the business who are very accountable individuals, credible business people, and who in fact do everything in their power to ensure that the consumer is getting the product they want and the product they purchase. I recognize, however, that there are some concerns about a very small percentage of dealers -- in many cases, fly-by-night dealers -- and that we have to protect the consumer from those kinds of situations.
I want to emphasize that it's almost like what I've seen in ICBC, where, because of the actions of one or two consumers, the policies of ICBC changed dramatically to negatively affect the whole industry, rather than dealing with the specifics, and charging those one or two individuals or businesses that have misused the system. I'm really concerned that we bring in any legislation that does that. Having gone through this legislation at some length.... I know that most dealers in British Columbia -- I would say 99 percent of
[ Page 7267 ]
the dealers -- comply now with everything that's in this legislation. So there will be nothing new.
The only issue that I'm concerned about, however, is setting up the fund. What we see in this legislation with respect to that fund -- and I certainly look forward to the committee stage to discuss it -- is the fact that we're now going to set up another government-appointed structure to deal with it. I think that what could have happened quite easily, and what should have happened, is that the automotive association -- which is a very credible association -- could have administered that fund under specific law by this government, without the province having to make more political appointees. Who knows the business better? Who knows how to determine the issues better than the association itself? The association understands all aspects of what is in the consumer's best interest and yet what is fair to the dealer.
I look forward to those discussions on that issue, because I know it could have been achieved. The two identities could have worked in harmony to deliver a better product and more assurance for the consumer.
I want to talk a bit about the liens aspect. I think the minister missed this, and perhaps I can give him some hints as to what he should look at, in terms of bringing forth an amendment. One of the real problems in automotive liens is the fact that a financial institution or a mechanical institution that has placed a mechanic's lien on a vehicle.... For the information of the House, those liens are placed many times without the owner knowing it, because it's an automatic situation. When you sign a work order, and you have not paid for that work order in cash, there are many policies out there which automatically place a mechanic's lien in that particular amount on that vehicle. That happens automatically, in terms of a policy. What does not happen is the removal of that lien when you pay for that particular service at the end of the month, or at the end of 30 days. That lien normally stays on because of the bookkeeping and the process that is required to remove it.
In terms of the financial institutions, very often when you do a lien check, you'll find a number of liens on a vehicle, but in fact those liens are no longer in effect because the debt has been paid. In fact, there should be a requirement in this particular section that all liens be removed when they are paid, and that would clean up the process. From my experience, I know that when every vehicle comes into the dealership, a lien check is automatically done. I can tell you, hon. Speaker, that 90 percent of the time about 80 percent of those liens are no longer in effect, but they are still there.
There is one other issue that should be addressed by the minister with respect to liens. Because of the time lapse, quite often a lien could be put on a vehicle Friday, and the vehicle could be sold on Monday or Tuesday. A lien check could be done, and nothing would show up. The respective dealer could have complied with all the issues before him and with the requirements in law to do the lien check, but the lien will not show up for as long as ten days. There's nothing in the act that allows for that kind of consideration to be dealt with. In fact, if that lien is not identified by the dealer when he sells the vehicle, in this act he would be dealt with as though he didn't disclose that at the time of sale.
I don't believe that's fair, and some consideration should be given to that particular instance, because there's an obligation for the dealer to notify the consumer that there are liens. But there should also be an obligation for the consumer who either sold or traded in that good to make the same declaration. Yet I don't see that in this legislation. I think incidents like that are really a two-edged sword, and the consumer has as much responsibility to notify the dealer that that is the case as the dealer has to notify the new consumer.
One other thing I wanted to talk about, with respect, is not in this legislation and would serve as a tremendous tool to protect the consumer. Most of the issues I have seen arise out of used-car sales have come out of the fact that they had damage of over $2,000, which has not been declared when they sold or traded in the vehicle. That is a major issue of dispute in used-car sales. I think it would be very simple for this minister -- although he doesn't have ICBC anymore -- or for legislation to require that ICBC list on the registration of the vehicle any damage over $2,000 -- even if there was a box on the registration form that suggested this vehicle has had damage over $2,000, with an X to mark it off. That would automatically look after a whole lot of concerns in the used-car market. Most of the concerns, as I said earlier, that I see in that particular area have been around the fact that the car has had a major accident. The person who traded it in will often go to another community where the car is not known and trade it off as though it has never had an accident. That is the problem.
So, hon. Speaker, I look forward to discussing many aspects of this bill. With respect to the credit reporting, I want to commend the minister for bringing that forward, because of the issue of someone being able to straighten out their own credit record if in fact something has been placed on it which is not fact or which is there in error. Under the existing legislation, it's virtually impossible for you to clear your own credit record. I'm hoping that this legislation will in fact allow us to do that.
There are other sections in the bill that I will not comment on at this time but which I think deserve a lot of comment. I look forward to dealing with those in committee stage.
C. Tanner: I rise to talk on Bill 21, specifically to the Credit Reporting Act. Quite frankly, I rise to congratulate the minister on bringing this legislation forward. For many years it has been the practice of some of the reporting companies, because of the volume of business they do, not to pay attention to the small and setting-out entrepreneur. As a consequence, they frequently suffer because of an erroneous report that is put out -- not intentionally -- which can affect their business not only immediately and for the following 12 months but sometimes for years. The minister deserves to be congratulated for bringing this forward.
[ Page 7268 ]
I think I'm right in saying that this is the first legislation of its type in Canada. That being the case, I hope that when the minister is talking to his fellow ministers across the country, he will recommend to them that this is as necessary in their provinces as it is here. Many businesses in British Columbia depend on suppliers from other parts of the country, and consequently their reputations extend not only across B.C. but also right across the country.
The minister is also to be commended on the way he brought it in. I think it fills a need. Many small businesses have been telling me for many years that there has been a problem. I will make a couple of suggestions when we get to committee stage, which I think can improve it -- nothing of any consequence. I think that my fellow members have spoken adequately to the rest of the bill. I look forward to committee stage, and I hope the minister will take our recommendations into consideration.
[R. Kasper in the chair.]
Hon. M. Sihota: I wish to thank the hon. members for their comments, and I look forward to their suggestions in committee stage, as we try to improve on this bill. With that said, I move second reading.
Motion approved.
Bill 21, Consumer Protection Statutes Amendment Act, 1993, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.
Hon. M. Sihota: Hon. Speaker, given the hour, I move that the House do stand recessed for ten minutes.
Motion approved.
The House recessed at 7 p.m.
The House resumed at 7:07 p.m.
Hon. J. Cashore: I call committee on Bill 26.
WASTE MANAGEMENT AMENDMENT ACT, 1993
(continued)
The House in Committee on Bill 26; M. Lord in the chair.
On section 2, 20.4 as amended (continued).
J. Tyabji: I want to put on the record that the opposition is extremely upset about the way.... Not only did we get ten pages of brand-new detailed amendments for the bill this morning and end up in committee stage, but the government had been advised that the critic cannot be here for the debate from 7:30 to approximately 8:45 tonight. Yet we are still in committee stage of the bill. We're extremely upset about that because it will impact in terms of the specifics of it, and that is contrary to the protocol of the House.
However, when we adjourned debate on committee stage of the bill, we were talking about the persons who are not responsible for the remediation or cleanup of a contaminated site, and the potential exemptions. Under the amendments brought forward this morning, we had an extensive debate with regard to acts of God. If an act of God occurs after this bill has passed and, as a result of that, there is contamination of the site, the person responsible for that site is also responsible for the cleanup of the site.
[R. Kasper in the chair.]
At the point that we left the debate, we were arguing over the line that we draw between the polluter-pay principle and the principle of due diligence, and at what point people become responsible if they have followed the letter of the law. I'd like to offer an example of a situation to the minister, and I'd like to know if it is covered.
The minister said in a previous section that some agricultural operations will be covered by this bill. That will only be determined by regulation, but the regulations aren't even ready yet, so we don't know whether or not it will happen. Under section 20.4(1)(a), when we're talking about an act of God and people who exercise due diligence, if we look at a factory farm.... If we look at a situation, for example, like a poultry farm which is a factory farm, and if there is subsequent contamination of a watershed as a result of that, is that farm then liable to pay for the cleanup of that site under this act?
Hon. J. Cashore: Yes.
J. Tyabji: If that person is responsible for the cleanup of that site, to what extent are they responsible if they can't afford to pay? Are we talking about being responsible for the cleanup of the site? Would they be fined for that? How can you reconcile that with the fact that this ministry, when someone is in excess of their pollution permit, has increased the volume of pollution on permits in the past? How can the ministry then say: "We have recognized that there was pollution, and we set a certain standard for pollution. But when that standard results in contamination, that person is responsible to pay for that"? How does this minister reconcile that?
Hon. J. Cashore: The liability would be a civil liability in such an instance. If it turned out that the individual was not able to pay, it could get to the point of dealing with the orphan-site funding process, which is by agreement between the federal and provincial governments. However, the circumstances that could be envisaged where that may happen are indeed remote. As a matter of fact, we would be hard-pressed to come up with an example in British Columbia on agricultural land that would fit the hon. member's description. I did mention the case in Langley where the owner of a farm
[ Page 7269 ]
was using that site as an illegal dumping ground. That is obviously a very clear situation.
If contamination of a site that fell within a properly worded definition which would be cognizant of the various factors.... If that turned out to be a contaminated site and it was caused by a particular farm within that hypothetical example -- while I cannot think of any example that would apply to that in the history of British Columbia -- that individual would be liable.
J. Tyabji: Perhaps I can assist the minister and remind him of 1992's estimates when we talked about Lilydale poultry in the Bilston-Metchosin watershed where the pollution permit was a certain level, the Ministry of Environment was allowing the volume to exceed that level by permit and there was a resulting contamination of the watershed. In that case, the minister was aware of what was going on, as in many other cases -- as in the cases where there have been previous dioxin emission levels, where there were air emission standards, where the minister has permitted pollution; not just allowed it, but gave permits for it.
Once the contamination takes place, under this legislation, the very people who went to the expense, time, research and capital investment to set their industry up so that they met the standards of this ministry are now going to pay a cost, because the minister is retroactively fining them for this new contamination level. And we don't even know what the parameters will be, because the regulations aren't even in existence yet. We know they are going to be fined. We don't know to what extent, and we don't understand how it can happen when they have followed the law in the past.
Hon. J. Cashore: I would certainly advise the hon. member to read the act. No fining is taking place. She has referred several times to fining. This is not the activity of this act.
[7:15]
With regard to the Lilydale poultry example, I assume that if we followed a line of reasoning from the earlier question, that was being used as an example of an agricultural pollution. Lilydale poultry is not a farm; it's an industry. In that case, if a contamination resulted from a discharge from that plant, then certain actions would ensue.
J. Tyabji: The minister is saying that there are no fines under this act. But the way I read it, the ministry has the ability to move in, control the pollution, and then bill the person who is deemed responsible after the fact to prevent downstream contamination. There can be punitive charges as well. That indicates that there is some ability for the minister to apply a cost to the cleanup. I have a problem in that this ministry condoned the actions in the past and now they are retroactively fining them.
Hon. J. Cashore: I don't know if the hon. member is suggesting that polluters such as Lilydale should be ignored and let off. If that is what she is suggesting, then she should make that very clear.
G. Farrell-Collins: We are all wrestling with this very complex piece of legislation and with the amendments that have come before us today. It is my hope that we will be able to examine it in as much detail as possible in order to allow for a thorough and consistent review of this legislation before we pass certain sections of it.
I have to admit -- hearing the questions of the member for Okanagan East and the responses from the minister -- that I have a little bit of concern. Not being as familiar with the act as the critic, I wonder if the minister is telling the House and the public that in a case like the Lilydale example, despite the fact that his ministry contributed directly to the contamination by granting permits on a continual basis to the company, the minister would retroactively change the laws and require this corporation to bear the cost of cleanup.
Hon. J. Cashore: The fact that a company held a permit is not a defence.
G. Farrell-Collins: How can the minister possibly bring forward legislation such as this, particularly these amendments, to retroactively require a company or an individual who had all along been following the laws that the government had been setting...? How can the minister rationalize going back and saying to that company or individual: "Sorry, we blew it as the regulatory body. We made a mistake. We didn't know what the heck we were talking about. We said you could go ahead and do this. We're the highest authority in the land as far as regulations and legislation go, and we said it was okay. You complied with those regulations, and you know what? We made a mistake. You've been polluting all along, and now we're going to sock you with the bill for it." How can the minister justify that action?
Hon. J. Cashore: It's simple. The main justification is to protect the taxpayers of this province, which one would assume that members opposite would support. We have to make it very clear that we're not dealing here with something that would technically be seen as an offence. This is not a process that in the first analysis leads to litigation. It is the essence of the polluter-pay principle, which is that the party or parties who cause pollution are responsible for the cleanup of the land. It is not the responsibility of the taxpayer or of an innocent person who happens to come onto the land.
G. Farrell-Collins: I fail to see how....
Perhaps I could ask the Chair to bring the House to order so that the debate can continue. If caucus meetings need to occur, they could occur in caucus offices.
The Chair: Hon. member, you have the floor. Continue.
An Hon. Member: What's the problem?
G. Farrell-Collins: I was merely asking members of the New Democrat caucus, if they choose to
[ Page 7270 ]
hold a loud debate, to move outside of the House so that we can continue this discussion.
The Chair: Hon. member, you have the floor. Carry on.
G. Farrell-Collins: I'm fully aware that I have the floor, hon. Chair. Unfortunately, I don't have the ability myself to speak and be heard over top of the noise, and that's why I asked the Chair's discretion.
Interjections.
G. Farrell-Collins: I guess it's indicative of the level of respect that members of the government have for this House, but that's fine. We're used to it, and we'll continue.
We have a principle of polluter-pay. We're aware of that. Let me give the minister an example from my own area of Langley, where we're now finding that the aquifers have been polluted by nitrates from farming. Is the minister going to go back and blame all of those farmers for farming and being involved in some of the most modern farming practices in the world, I might say, in the Langley area? Somehow those water aquifers may have been polluted with nitrates, and the minister is now going to trace them back and make each individual farmer pay to either try to clean up the nitrates -- I don't know how it could possibly be done -- or to install a water system.
Hon. J. Cashore: The hon. member is assuming that the threshold with regard to nitrate levels would be set in such a way that it would capture the farming examples he cites, and that is not the case. The levels would be set in such a way that it would not catch those farmers, and there's no reason to fear that.
I think it needs to be pointed out, with regard to an earlier line of reasoning this hon. member was following, that permits are not, nor have they ever been, a defence against prosecution. Permits are not used in that way. Permits do not remove an individual's liability. It should be noted by the hon. member that that principle is actually implicit in the existing legislation, prior to this act coming in. This act puts in place a modus operandi that enables the polluter-pay principle to function. So the main thrust of this legislation is not litigious. Its thrust is not to seek prosecutions. Its thrust is to deal with the impact of the cost of pollution, and to identify those who are responsible for those costs.
I should point out, because I know the hon. member would like to understand how this works, that this is consistent with such legislation across Canada and with regard to Canada itself, and also with the views of the Canadian Council of Ministers of the Environment. It is also very evident in a number of United States jurisdictions. This legislation is here to protect the innocent. It is appropriate that those who cause pollution should have to pay a cost for causing that pollution. That is the simple, basic principle. Nobody's being fined as a result of this. There are certain procedures in the act where, if a remediation order was issued and somebody failed to comply with that order, then the justice regime could kick in at that stage. But the whole intent of this act is to keep these issues out of court, to enable dispute resolution, to enable those involved where there is a joint and several liability to work together with the issue of the costs.
We're straying a little bit here from this actual section, but I think it's important to outline the scope of this bill, and this section, being very much a part of that, is to facilitate an appropriate process that protects the taxpayers of this province.
G. Farrell-Collins: We're all in favour of this nice principle of protecting the taxpayer, and there are many things that a government can and does do to attempt to accomplish that. But it would seem to me that in the comments of the minister there is a bit of contradiction. First, he says that this legislation firmly believes that the polluter must pay, and that it doesn't matter what the regulations, permits or levels of allowable production were in the past. It doesn't matter what role the government played in that. The minister says that whoever caused the pollution, despite the fact that our way of measuring it may have changed, or our knowledge and technology in determining what pollution is may have changed, those individuals or those corporations should be held directly accountable for the costs of the pollution. Then, in the next sentence, the minister turns around and tells me that those farmers in the Fraser Valley shouldn't worry about the level of nitrates, because the level of nitrates the minister is allowing is not a problem. But how do we know that six months from now the minister isn't going to come in and say: "Gee, that pollution really is caused by the farmers"? In that case, regardless of what the government regulations were, if that pollution was caused by the farmers, then the farmers have to pay for it. So what is the answer here? How does the minister resolve those two contradictory statements?
Hon. J. Cashore: This hon. member, and others, will have the opportunity to participate in the regulation-making process. That process will seek input from farmers and others who have an interest in that issue. Obviously that interest includes the viability of the industry. The interest of this legislation is not to impact the viability of that industry, but to identify those threshold levels of contamination that require dealing with for the protection of aquifers and of the public interest. That's appropriate. So there will be a consultation process attendant to the development of the regulations. I'm sure the members of the opposition party will want to participate in that process once it is underway.
G. Farrell-Collins: The minister still hasn't answered the question. I'm using one example, but I think it applies to all the people who this bill will impact on, particularly this section. How can those people have any assurance that those levels -- which the minister states will be set by consultation and community involvement -- won't be changed a year or two from now, as we discover through technological
[ Page 7271 ]
advancement, or just the modernization of science, that there are impacts at smaller levels than we've anticipated in the past? How can the minister give any assurance to anybody in this province that they're not likely to have this come back on them, despite every effort they've made to comply with the regulations and guidance of the province?
Hon. J. Cashore: The main criterion would be the protection of public health and the environment. The assurance that there won't ever be a change -- if some dramatic scientific information said there was an issue there that changed the threshold of what impacts public health and the environment -- well, that would have to be considered. That's true. But the fact is that this is going to be a consultative process. The regulation-making process is going to take considerable time. It's going to be done with consultation.
[7:30]
I would submit that, in the very unlikely event this hon. member ever had a role in developing legislation, you could put that question to virtually any piece of legislation that might ever be on anybody's books. So in terms of how you give assurance, you give assurance by following through on what you say the legislation is, by having an appropriate consultation process and by administering it well. That, hon. member, is the way it is with virtually all legislation.
G. Farrell-Collins: I beg to differ with the minister on a number of points. First, I'm very sure that all members of the opposition will have more than ample opportunity to draft and produce legislation very near in the future, and for an extended period. Given the performance of a number of members of the cabinet and the government as a whole, I'm sure it will be very quick indeed.
But getting back to the substance of the bill, I guess the problem I'm having is that the minister is sort of washing the hands of the taxpayer and the government of any responsibility at all for setting the regulations and legislation that's gone on in the past and that will go on in the future.
He is saying: "As a government, community and society, we're going to make these laws and the regulations that go with them. We're going to set the standards that everyone is expected to comply with. And if we blow it as a society, then we're going to go back and nail that individual who complied with the rules of society as best as they possibly could." That's like going back and charging somebody with a crime that wasn't a crime 20 years ago -- changing the laws now, and then going back through the history books trying to find anybody who's committed any sort of crime in the past, and convicting them for or making them bear the costs of that crime.
Society sets its rules on an ongoing basis. The minister in this legislation is setting the rules, the legislation, the regulations and ultimately the standards for waste and pollution that will have to be complied with by individuals and corporations in this province. The minister is saying: "Don't worry about it, because at any time we can change these regulations. We can change this legislation. We can change the measuring stick that's required. And we're going to come back and make you pay for it." So....
The Chair: The minister rises on a point of order.
Hon. J. Cashore: This is a wide-ranging second reading speech, and it is not focused on any part of the amendment to this section standing in my name on the order paper.
The Chair: Point well taken.
G. Farrell-Collins: On the point of order, this is a debating committee stage. There are certain specific examples, and I have been giving the minister a number of them as they apply here. The minister, perhaps, hasn't been paying attention.
Hon. J. Cashore: Where in the section?
G. Farrell-Collins: We have been dealing with very specific examples and the impact that they are going to have.
If the minister wants to stand up and make another point of order, he's welcome to do so, but perhaps he could hold his mouth and hold his chair until such time....
An Hon. Member: Point of order.
G. Farrell-Collins: I'm on a point of order.
The Chair: Hon. minister. Order.
G. Farrell-Collins: I'm speaking on a point of order, hon. Chair.
The Chair: Will the hon. member please take his seat. Hon. minister, are you rising on a point of order?
Hon. J. Cashore: On the point of order, hon. Chair, the hon. member has stated that he is specifically dealing with this amendment standing in my name on the order paper. Would he kindly clarify for me the precise section of this amendment that he is referring to in his comments?
G. Farrell-Collins: The minister has brought forward a very wide-ranging section, I may add -- an amendment to section 20.4 -- which runs some two pages. That section has a very wide impact; it's a very large section as far as legislation goes. I've been trying to the best of my ability to give the minister concrete examples that apply to this bill. If he is having trouble grappling with that, then I would suggest he seek assistance from his aides and come up with some better reasons.
L. Fox: On this section, the one that specifically concerns me is (1)(k). It seems, when I read, "The following persons are not responsible for remediation at a contaminated site," and then, "a person...who
[ Page 7272 ]
exercised due diligence," and so on.... Then you get down to section (k), and it seems to indicate that the provincial government in fact is excluded in this particular clause, because it suggests that a government body that possesses or owns or operates a railroad.... Obviously, no municipality within British Columbia that I am aware of operates a railroad. You seem to have excluded the railroad as well as some municipalities for the right-of-way of sewer and water. I'd like to have some explanation as to what the intent of that clause is.
Hon. J. Cashore: This is to protect government bodies which, in some instances, could be seen as having deep pockets, which would be inappropriate given that the roadway may be passing over a previously contaminated site.
L. Fox: Just to explore that a little further, that would suggest this is new water and sewer lines and new construction of railroad lines, not existing lines. Is that what the minister was trying to express?
Hon. J. Cashore: This is not new. This is in the body of the amendment originally in the act. But with regard to the question, what we are dealing with here is the fact that we need to be protecting government bodies from liability. That is the purpose. For instance, I would think that the council in Vanderhoof would be very pleased to know that this hon. member supports a measure that is protecting them, as a government body, from liability.
L. Fox: I'm pleased to know that the minister knows which community I was mayor of, but I want to get some clarification here. I have no problem if this section were to suggest that if the municipality or provincial government were to acquire some property for the building of a highway or the installation of a sewer and water line and found that it was a contaminated site, they would be somehow relieved from that being a responsibility. However, if the minister is suggesting that the rules that he wants to apply to the private sector and private citizens of this province do not apply to the government and municipalities, I have some problem with that. We, as government, provincial or municipal, have every bit as much of a responsibility as the private sector or individuals to protect the environment. Maybe the minister would like to clarify that, because I really have difficulty with his earlier statement.
Hon. J. Cashore: First of all, I should make it very clear that the words "or right of way for sewer or water" are the only ones that are added in as part of this amendment. They are added to the wording that was in the original amendment in the act. If the hon. member would look down to subsection (2), if the government body was responsible for the contamination, they would lose their exemption in that instance. The purpose of this is to ensure that if a government body, for instance, was to put a road over contaminated land, the taxpayers would be protected, and would not be liable for something which some other party should rightfully be liable for.
L. Fox: I think I understand it. If that property was previously owned by the private sector, I could understand that there is some avenue for remediation. But what happens if the property was previously Crown land? What form of remediation takes place, and who pays for it?
Hon. J. Cashore: If the owner was the Crown, then the Crown would have responsibility if it indeed was the polluter. If it turned out that there were several polluters, the Crown would have to work with those other polluters to work on the remediation of the site.
L. Fox: One further question on this. In the situation where the regional district had a landfill site that was put to rest several years ago and now all of a sudden.... As the minister will be aware, given that he is also the Minister of Lands, these sites are usually, by agreement, utilized by the regional district, but they're Crown lands. What happens when that dump or landfill site is in the process of being reclaimed by the province for the purposes of anything under clause (1)(k)? Does the regional district become liable under this legislation, or does the province, given that the regional district, by permit, was the individual that operated that landfill?
Hon. J. Cashore: The short answer is that the polluter would be liable. If there were two parties involved, they would be jointly liable.
L. Fox: I'm kind of excited by that answer, because if I want to look at my part of the country particularly, the polluter would be every individual who dumped garbage within that landfill site. In order to pursue this in a court of law, one would have to identify every visitor to that particular region and every resident at that point in time who in fact did do that, because many individuals may have dumped substances into that site without the knowledge or sanction of the regional district.
Hon. J. Cashore: The hon. member knows full well that the owner-operator would be the party responsible and that would be the legally identified owner. I should point out that this act does not create liability -- the liability was there before. Given the fact that liability is presently there as a principle in the existing law of the province, this act is designed to enable the polluter-pay process to function, but the liability upon the polluter is already implicit within the existing legislation. One problem with the existing legislation is that it is not well facilitated. This legislation will facilitate the functioning of the polluter-pay principle which, insofar as liability is concerned, was already present in the existing legislation. So in that sense, this is not creating something new.
L. Fox: I don't profess to be an expert on this legislation. Obviously I, and the member for the official opposition, are trying to live up to the expectations of o
[ Page 7273 ]
ur respective critics to make sure that we ask the appropriate questions. I'm not going to cast any blame on just whose fault that is, but it makes it rather difficult.
[7:45]
The minister suggested that this liability was in previous legislation, but we're talking about the principle of polluter-pay in a more prominent way than we were in previous legislation, so obviously there is more of a liability today. As the incident I just put forward to that....
The Chair: The minister rises on a point of order.
Hon. J. Cashore: The hon. member has gone on with a series of questions. I have been very wide ranging in seeking to answer them, even though these questions have not been specifically focused on this section.
The Chair: That point is well taken. Hon. member, on the amendment.
L. Fox: Each time I've stood up I've made reference to the pertinent section of the clause in speaking to it.
G. Farrell-Collins: On the same point of order, the member has been very diligent in referring specifically to this section and, indeed, to the actual subsection and subclause. Given that the minister has tabled these amendments today and is proceeding with this legislation despite knowing about the absence of the critics, I think it would be to the benefit of the whole House if the minister would allow those very focused questions to continue, and if he would answer them in a constructive way that shows he is willing to answer questions so that the public of this province can find out what type of legislation he's bringing in.
L. Fox: In order to enlighten the minister, I am still referring to subsection (2) which, in fact, talks about the exclusion from liability of government bodies, and what the liability may or may not be on a regional district that operated a landfill site by permit.
I was trying to say prior to the point of order by the minister that the polluter-pay principle, contained within this section and within this legislation, brings a new focus to these particular sections. The regional district that I belong to, I'm sure, would have very seriously considered the request of the government of the day for them to operate landfill sites on behalf of their citizenry. In fact, now this legislation and this section would suggest that under the circumstances that I put forward earlier, they may in fact become liable, even though they were permitted, for the cleanup of a future location -- perhaps for a railroad, a roadway, a sewer or water system. That was my concern.
Given that the funding constraints of those regional districts are no different than this government's, I want to know whether somewhere else in this legislation there is the opportunity for an appeal process that this section would cause to come forward. I realize I'm expanding it just a bit, but is there an appeal process available to those municipal or regional district bodies that may be affected by this clause?
Hon. J. Cashore: The answer is yes.
With regard to the issue the hon. member is raising with his example of waste ownership and how the polluter is identified, section 31.1 in the Waste Management Act deals with that and makes it very clear who has the responsibility and the ownership of that waste. Again, I think it's important for the hon. member to understand that this section is there to protect local government, and I think it's very important to recognize that that is where we're coming from. This is an exemption that protects local government.
K. Jones: Further to the minister with regard to subsection (1)(k), could the minister define for us the purpose of putting in subsection (2) in conjunction with (1)(k)? Could you tell us why it's necessary?
Hon. J. Cashore: Yes. It's necessary, as I said before, because (k) is an exemption which protects local government; subsection (2), however, recognizes that a local government could be at fault. Therefore, where that fault is clearly established, the polluter should pay. Some hon. members asked before whether there were instances in which the Crown would pay. Are there instances in which the province would pay? And the answer is yes, if the Crown were the cause of the pollution that is defined in regulation as being a contaminant. The fact is that (1)(k) and subsection (2) go very well together.
K. Jones: With clause (k) exempting government bodies completely, why is it necessary to go to clause (2) in addition to it? They're already exempted.
Hon. J. Cashore: I don't know how many ways I can say this. In (k) they're exempted to protect them in the instance that they are an innocent party, as a local government putting up a right-of-way going over contaminated land. Subsection (2) says that if it turns out that that local government is in fact at fault, then they aren't worthy of the exemption, and that removes them from the exemption. So they're exempted in subsection (k); in subsection (2), given certain circumstances, the exemption no longer applies, nor should it.
K. Jones: This clause is referring to those persons who are not responsible for basically restoring or cleaning up the mess and getting it back to a safe situation. Subsection (k) exempts a government body, if it happens to hold title to a piece of property, from responsibility if there happens to be contamination on it. That's what it says. Your assistants are shaking their heads, saying that that's not what it says. Could you clarify that, please?
Hon. J. Cashore: It only refers to the right-of-way over top of the contamination.
[ Page 7274 ]
K. Jones: It says, just to reread this: "A government body that possesses, owns or operates a roadway, highway or right-of-way for sewer or water on the contaminated site...." I think you had best reread it, because I don't think you really know what you're talking about in regard to the legislation.
Hon. J. Cashore: The hon. member conveniently stopped reading at the comma, but after the comma, it says: "...to the extent of the possession, ownership or operation."
K. Jones: Absolutely. I agree with the ability of the minister to read the rest of the clause, but really what we were talking about was the clause that I was referring to, whether it was a right-of-way. The minister was referring to a right-of-way. It's not just a right-of-way. It says: "...possesses, owns or operates a roadway, highway or a right-of-way." A right-of-way is only one means by which ownership, possession or operation occurs. Could the minister please clarify his intent in bringing forward this legislation?
Hon. J. Cashore: The intent is that the person responsible for the pollution should pay for the costs of cleaning up the pollution. The intent of the exemption is that an innocent party should not have to pay for cleaning up the pollution. That, in very simple terms, is the purpose. Now in the actual application here, we have the exemption in (k), but where it refers to subsection (1)(k), it is referring to the recognition that in some instances that body is responsible for having caused the pollution in that area.
K. Jones: That's good that we've got that clarification. In the case, for instance, where the provincial government takes a piece of property and deposits contaminated soil onto that property that is then identified as contaminated, and they build a roadway or put a building on it or something else like that, this clause means that the government is not going to be responsible for that contamination. Who, then, is going to be responsible for that contamination when the government actually places the contaminated soil on the property?
Hon. J. Cashore: In that example, the government.
K. Jones: If the government is responsible.... But you put this clause in here, and you have prevented the party that's aggrieved by this contamination from being able to take action against the government, haven't you? Does this exempt the government from responsibility for it?
Hon. J. Cashore: This is getting a little ridiculous. I have just said to the hon. member that in the instance that he outlined in his example, the government would be responsible. The government would have to cover the cost of that. The government is not exempted again. They're exempted by virtue of subsection (k), but then if it's found out that they are the party responsible for the pollution, they are the party that would have that exemption removed. We've had this exchange four, five or six times. I cannot believe that this hon. member is serious when he's constantly going around in circles like this.
K. Jones: I think it's pretty clear that the minister is having difficulty with this question, and he's trying to deflect the responsibility for bringing forward a very terrible piece of legislation with this last-minute amendment. He obviously hasn't read what was put forward. Somebody has put it forward for him, and now he's having to take responsibility for it. Well, Mr. Minister, the buck stops right there. It's your buck and your responsibility, and you're supposed to know what you're bringing forward. If you're going to bring forward this kind of legislation, you're going to have to be accountable for it. This is an absolute mess!
The Chair: The minister on a point of order.
Hon. J. Cashore: This is committee stage of Bill 26. We're dealing with the amendment standing in my name on the order paper to section 20.4. This hon. member is going off on a bit of a tirade, and -- let's call a spade a spade -- he's stalling. He is going over the same material over and over and over again, and he is stalling. That's an abuse of the House during committee stage.
The Chair: The Chair recognizes the hon. member for North Vancouver-Seymour rising on a point of order?
D. Jarvis: I feel that the minister is completely out of line. The member for Surrey-Cloverdale was trying to make the point that the minister was trying to obscure the intent of our discussion, and there is no point of order whatsoever.
The Chair: I would like to urge all committee members to return to the debate on the amendment dealing with this section.
L. Fox: I'll try to do my best to keep the questions specific to the section. I wanted to raise one more point before we left off, and I failed to do that. We talked about the fact that a regional district could be held liable under this act if the provincial government decided to build something over an old landfill site. I want to know -- because I don't see it in this particular exclusion -- if someone who was a contractor of the regional district at the time that site was contaminated is included in the exclusion, along with the regional district. It doesn't suggest that here. Is he in fact outside that?
Hon. J. Cashore: The issue would be who the primary owner/operator is, not who the contractor is. That is who would be recognized in this legislation as the responsible party.
[ Page 7275 ]
L. Fox: Just so I'm sure that I have all the i's dotted and t's crossed, the primary operator would be the individual who was permitted to have that site and to control it.
[8:00]
Hon. J. Cashore: It would be the owner/ operator, if a permit applied, yes. But I would reiterate that this legislation does not deal with permits; it is liability legislation. Therefore a permit is not a defence against this legislation, nor is this legislation litigious in that sense. It is to appropriate and recognize responsibility and then have a process whereby those who are responsible pay for the costs associated with that responsibility. It is not a fine that results from not complying with a permit; it is a responsibility for polluting. Therefore it protects the taxpayers, and it also is appropriate for the protection of the land.
L. Fox: I welcome that explanation from the minister. But my purpose for asking the question was quite simply that the land is in many cases owned by the province of British Columbia at the time that it's a landfill site, and the regional district is permitted to use it for that purpose. So in actual fact the owner of the land is the province of British Columbia, and that's the reason why I'm asking the question.
[H. Giesbrecht in the chair.]
Hon. J. Cashore: If the Crown is the owner, it could well be that the Crown and the regional district would have shared responsibility. It would depend on the exact circumstances, but that could be a very realistic scenario.
K. Jones: I'd like to remind the hon. minister that clauses 20.4(1)(k) and 20.4(2), which we were referring to earlier, have interesting potential. I'd like the minister to give us further elaboration on whether the intention of bringing this in was to take away the government's responsibility for the removal of the contamination on the Expo lands in Vancouver.
Hon. J. Cashore: No.
K. Jones: Could the minister then give us an example of what applications it is intended to be used for? What specific situations has the minister experienced that require this legislation to be brought in?
Hon. J. Cashore: If a municipality wants to put a road over a large industrial site, they should be allowed to do so.
K. Jones: The minister says that this legislation would not be utilized for the Expo site. Could the minister tell us exactly why removal of the Expo site's contamination would not fall into a category similar to what is described in this legislation?
Hon. J. Cashore: The hon. member is manufacturing words. His original question was: was the Expo site the reason this was put into the bill? The answer was no. His question now is: could there be an application? Possibly.
K. Jones: Ah, we are making progress. We have to be very precise in how we word it for the minister, because he has a little difficulty putting things together. It does really have some very great potential for the Expo site. Is this clause 20.4(2) that you've put in here intended to eliminate the government's responsibility for the costs of that contamination? Are you going to try to place that contamination charge back upon the former owners and operators of the site? Previously it was not possible to do that, but under this legislation you might be able to go after them retroactively.
Hon. J. Cashore: This section refers to a government body, not the owners.
K. Jones: Would the minister please clarify what he just said, because it doesn't make any sense in response to the question. He's talking about owners, but we're talking about the government not being responsible under these clauses.
The Chair: The member continues.
K. Jones: It seems the minister has tired of this subject. He doesn't want to answer the question, because it might lead the public to know what's going on or what's in the mind of this government. The people of British Columbia deserve an answer, Mr. Minister. They deserve to know what your intentions are. I think your intentions may be less than honourable with regard to the best interests of the people of British Columbia if what you've put down here in legislation is what it appears to be. I really think that you owe the people of British Columbia a response.
The Chair: The member continues.
K. Jones: It seems that that has been answered by the lack of a response.
I would like to go into another area and ask the minister if section 20.4 is able to deal with the aerial spraying authorized by the Ministry of Environment that resulted in the spraying of children on their way to school. This clause could therefore be brought in such that the government would not be held responsible for a spraying operation that they had the authority to authorize or not. They gave permission for the spraying to go ahead under certain conditions. Does the Ministry of Environment, which sets the pace for that, not take responsibility for the authorization they gave? The minister and the ministry have a responsibility for the protection of the public, yet they sometimes make mistakes, or maybe -- through their lack of knowledge -- authorize something that becomes a hazard to the community. Is the minister prepared to...?
Hon. J. Cashore: On a point of order. The hon. member is talking about aerial spraying which, to my knowledge, is not covered within this act. If the hon.
[ Page 7276 ]
member could specifically and precisely identify the wording within this section of this amendment, then I would be able to answer the question. So far he has not made that connection.
G. Farrell-Collins: On a point of order, I guess that comes right down to the gist of this whole section. I think the member is quite correct and is staying within the bounds of this by asking questions of aerial spraying that may, in the future -- and, indeed, have in the past -- amounted to pollution. The matter of who pays for rectifying those situations certainly falls within section 20.4. The House and the public require some guidance from the minister in that respect. Certainly the line of the questioning is in order.
The Chair: The Chair would remind all members of standing order 61, paragraph 2, which states that debates in committee shall be strictly relevant.
K. Jones: We have recognized that from the very beginning, and we've learned to follow the rules of the House very explicitly over this past year, because we've had good trainers. I'm not talking about the government; I'm talking about the Chairs we have had. The Chairs have been exceptionally good at making sure that the rules of order have been followed, and I commend them for that. I would ask the Chairman to continue to recognize that when issues are being addressed, the debate and the questioning shall get an adequate answer from the minister who is supposed to be responsible.
We are talking about section 20.4 of the bill, and we would like specific clarification. The minister should know the answer to this type of question, because the minister spent a lot of time yesterday preparing the amendments to his previous proposals, which were obviously faulty. The minister now has to come forward in a panic with a whole series of resolutions to correct his previous mistakes. The minister should know what his mistakes were and why he was bringing forward this new material.
Hon. J. Cashore: This member has filibustered for three minutes solid without making one reference to one word in this amendment to this section. Not one word in reference to it. The Chair has been extremely tolerant and understanding, but this is using up the time of the House, time that should be used appropriately. This is vexatious and frivolous.
G. Farrell-Collins: On that same point of order, previous to having to somewhat harangue the minister to get an answer, the hon. member had asked a very relevant question. It related to the impact of aerial spraying and determining the cost of that pollution at some time in the future, or in the past when the level of pollution was determined.
Quite clearly, if the minister had answered the question the first time, the hon. member for Surrey-Cloverdale wouldn't have had to bring a very difficult and important issue in his constituency to the minister's attention yet a second time to try to encourage him, by whatever means possible, to give an answer. If the minister were forthcoming with his answers, we wouldn't have to do this. We could get on with the legislation.
The Chair: The Chair would remind all hon. members that a member may ask a question and the minister may answer the question. I urge all members to be strictly relevant in their questions and answers.
D. Jarvis: I ask leave to make an introduction.
Leave granted.
D. Jarvis: A friend of mine in the precincts just advised me that the election in Alberta is now over. The Conservatives won 50 seats, the Liberals won 36 and the NDP were wiped out.
K. Jones: In another two or three years it looks like the same result will happen here in British Columbia, except that it will be Liberals leading this government. We will....
The Chair: Order, please. If the members would be strictly relevant, we could probably contain this debate. Please proceed, hon. member.
[8:15]
K. Jones: I can assure you that we will give forthright answers as ministers at that time. We don't have to hide behind legislation that we're not knowledgeable about or that we're afraid to answer questions about. We will be forthright, believe me.
I'd like to go back to my question to the minister with regard to the aerial spraying authorized by the Minister of Environment. I don't know whether I can get an answer, because the minister is not paying attention. He doesn't know what I'm going to ask him, so.... Hon. Chair, do you want me to wait until the minister has a chance to listen?
The Chair: Please proceed, hon. member. You have the floor. Unless you continue, I have to ask the question.
K. Jones: I would like to go back to the minister with that question. It's very much a concern of the parents and children of my riding. The minister's office has authorized aerial spraying, and it has, in the past, landed on the children going to school. It is a very serious problem. I hope he's not making light of such a serious problem. Since the ministry has authorized that aerial spraying, I want to know whether the government is liable under this legislation to the parents. Is this legislation going to exempt them from that liability? Following the connection to this legislation, the aerial spraying happened to come onto a roadway which is owned by the government. It's Crown property -- in case you missed that fact.
The Chair: The member for Surrey-Cloverdale continues.
[ Page 7277 ]
K. Jones: It seems that the minister is more anxious to get out of here than to seriously look at problems he needs to address as the Minister of Environment. When he gives the authorization to spray in our communities, he has to take responsibility for the contamination and hazard to our children. He does have that responsibility. I see him smirking. He obviously doesn't want to take responsibility for this. Isn't the minister prepared to answer a question that directly relates to hazards to our children? Does he not care?
Interjection.
K. Jones: You laugh. It's unbelievable that the minister should make such a joke out of something that is serious. I find it unbelievable; it's unacceptable.
G. Farrell-Collins: Given the minister's failure to address those issues brought forth by the member and his unwillingness to answer those questions, I move the committee rise, report progress and ask leave to sit again.
Motion negatived on the following division:
|
YEAS -- 11 | ||
|
Dalton |
Farrell-Collins |
Wilson |
| Hanson | De Jong | Fox |
|
Tanner |
Anderson |
Jarvis |
|
K. Jones |
|
Tyabji |
|
NAYS -- 28 | ||
|
Petter |
Priddy |
Edwards |
| Cashore | Charbonneau | Jackson |
| Pement | Beattie | Schreck |
| Lortie | Lali | Conroy |
| Smallwood | Hagen | Blencoe |
| Barnes | B. Jones | Lovick |
| Pullinger | Evans | Doyle |
| Hartley | Lord | Randall |
| Kasper | Simpson | Brewin |
| Janssen | ||
J. Tyabji: I'm glad to see the government members staying after the vote to participate in the debate, as they didn't want the House to adjourn.
Section 20.4(1)(e) says: "an owner or operator who owned or occupied a site that at the time of acquisition was not a contaminated site, and during the ownership or operation the owner or operator did not dispose of, handle or treat a substance in a manner that, in whole or in part, caused the site to become a contaminated site." With regard to that section, how does it become contaminated if it wasn't contaminated when they acquired it and they didn't do anything to make it contaminated?
Hon. J. Cashore: Somebody else could have done it.
J. Tyabji: Could the minister give a specific example of how someone else could contaminate a site that someone else was owning and operating?
Hon. J. Cashore: Midnight dumping of illegal waste.
Interjection.
J. Tyabji: The member for North Vancouver-Seymour asks: "What if it's before midnight?" Is it still considered illegal dumping?
I'm assuming that this is also the section that applies when you have downstream contamination. Is that correct?
Hon. J. Cashore: No.
J. Tyabji: When it says "persons are not responsible for remediation," does that mean that if the owner or operator of a site that is considered contaminated has inherited this contaminated site because of downstream contamination, they're still liable for the cleanup?
Hon. J. Cashore: Would the member please identify the section she's referring to?
J. Tyabji: I'm referring to section 20.4(1)(e), which I already read into the record. The minister responded that it could be midnight dumping, and we're wondering if that could also be a site that became contaminated because of downstream contamination. If someone ends up being responsible for a site because of downstream contamination, are they also responsible for cleanup costs?
Hon. J. Cashore: Yes, they would be responsible for cleanup costs. But the section she should be referring to is (i).
J. Tyabji: Actually, the section I'm referring to is (e), because I'm talking about a site that is not contaminated when someone purchases it and that happens to be, for example, downstream from a tailings pond or something. As we canvassed in the previous section, if there's an act of God or something like that -- or even less than that, if there just happens to be some source of contamination -- and this person ends up with a site that has become contaminated, are they then responsible for the cleanup?
[8:30]
Hon. J. Cashore: The person is protected by both sections (e) and (i) because they haven't caused the contamination themselves.
J. Tyabji: In that light, then, who does become responsible? I know that later in the bill we deal with some of those responsibilities. Are we then looking solely to government in the event of not being able to trace the source of contamination?
I also note that in this bill, when it says that it's not a contaminated site.... The owner or operator didn't
[ Page 7278 ]
cause it to be contaminated, but it's become contaminated. Then later in the same section, in (j), it says: "an owner or operator of a contaminated site containing substances that are present only as natural occurrences not assisted by human activity and where those substances alone caused the site to be a contaminated site." In this respect, then, obviously the owner or operator is not responsible for cleaning it up. How is that dealt with? At what point are we going to deal with the responsibility for cleaning up that site? Is that automatically government's responsibility, and if so, which level of government?
Hon. J. Cashore: In that scenario it becomes an orphan site, and there is a process for dealing with it. I answered that question earlier.
J. Tyabji: An orphan site is one that could conceivably have an identified owner-operator who's active on that site, and yet it's still a site that the government is responsible for. Under (g) it says: "a government body that involuntarily acquires an ownership interest in the contaminated site, other than by government restructuring or expropriation, unless the government body caused or contributed to the contamination of the site...." How does a government body involuntarily acquire a site?
Hon. J. Cashore: By tax default.
J. Tyabji: I'm assuming that the site then also becomes identified as an orphan site. Is that correct?
Hon. J. Cashore: That could be correct.
J. Tyabji: How could it not be correct? To what extent will it be governed by future regulation?
The Chair: The member may continue.
J. Tyabji: I was expecting a response from the minister.
Hon. J. Cashore: I've answered it.
J. Tyabji: The minister answered that it could be considered an orphan site. What I'm trying to find out is: when could it not be? What are the exceptions to it being considered an orphan site?
Failing an answer to that, there is an amendment that changes 20.4(2) to read: "Subsection (1)(k) does not apply with respect to contamination placed or deposited below a roadway, highway or right-of-way for sewer or water by the government body that possesses, owns or operates the roadway, highway or right-of-way for sewer or water." Why is the right-of-way restricted to sewer and water, and why does it refer to "deposited below" rather than to something that would be adjacent to or on, other than that there are the pipes underneath? Is that the only reference to below?
Hon. J. Cashore: That was dealt with ad nauseam.
J. Tyabji: I doubt that ad nauseam is the proper parliamentary term for debate on a section. The question is: what recourse does anyone have to a government body that's acting against its own laws? For example, if we end up with a roadway, highway or right-of-way where staff are.... I'm sure that the minister is going to answer with regard to bad faith, but if it turns out that the staff are not acting in bad faith but that there is some contamination as a result of their actions on the government property, what recourse is there? How does a violation go through the system? For example, if there is a violation by employees of the Ministry of Transportation and Highways -- I see that the minister is here -- on these government rights-of-way, roadways or highways, what would be the recourse under this act?
Hon. J. Cashore: For the umpteenth time, if the government placed the contamination there, the government is responsible -- if.
J. Tyabji: I'm not sure whether this was dealt with in any detail, but what I'm trying to find out is the actual procedure. If an employee of the Ministry of Transportation and Highways -- or of any ministry -- happens to violate something in an act under the Ministry of Environment, what is the procedure? What's the monitoring process? Who would find out, for example, and how would it come under this act? Would it have to be an infraction reported to a regional manager? Does the regional manager then have to come through the Ministry of Environment, or would they contact the ministry that was responsible for the offence? How does it work?
Hon. J. Cashore: We dealt with that during the section on the site profile process.
J. Tyabji: I don't believe we did, actually. We dealt with site profiles under the site profile process. I'm talking about infractions caused by employees of the provincial government who happen to work for a different ministry. How are those violations dealt with under this act?
Hon. J. Cashore: We are not dealing with infractions.
J. Tyabji: I am canvassing 20.4(2), and it talks about: "contamination placed or deposited below a roadway, highway, right of way for sewer...or water by the government body that possesses, owns or operates the roadway, highway or right of way for sewer or water." What I'm am asking is: if there is, through the workings of a ministry of government, some contamination that will be placed or deposited below a roadway, highway or right-of-way by an agency of government or an employee of an agency of government, what is the mechanism for follow-up here? We understand that it
[ Page 7279 ]
doesn't apply with respect to this contamination in a general sense, but, as the minister said, government is responsible for government's pollution. So what is the procedure?
Hon. J. Cashore: I answered this before. The manager has the responsibility of seeing to the cleanup in this case. He is the regulator.
J. Tyabji: My understanding, then, is that it is completely up to the manager to monitor the potential contamination. There would not be some kind of automatic process in place, but it would be something that the manager is monitoring or there's an ability for the public to report it to the manager.
Hon. J. Cashore: We have a systematic process in this of site profile and site investigation, and quite often these situations are drawn to the attention of the manager.
J. Tyabji: I have two last two questions under this section. Under (3)(a) we have: "at any time...." This is talking about the secured creditor, and I believe that is still unamended. My understanding is that it stays as it is written. Under (3): "Subsection (1)(l) does not apply if the secured creditor (a) at any time was responsible for, encouraged, suggested or gave tacit consent for the treatment, disposal or handling of a substance by another person that has resulted in any contamination at the contaminated site...." How is "tacit consent" defined?
Hon. J. Cashore: The hon. member has now gone into subsection (3) of the bill, which was deleted by the amendment.
J. Tyabji: Then the next question is: is subsection (4) also deleted? Oh, I see that subsection (4) has now become subsection (3). Subsection (3) says: "A person seeking to establish that he or she is not a responsible person pursuant to subsection (1) has the burden to prove all elements of the exemption on a balance of probabilities." Is that not ultra vires? Isn't someone innocent until proven guilty? That basically says that the burden of proof is on the individual, and that they are presumed to be liable until they have proven that they are not.
Hon. J. Cashore: This is standard with all environmental laws. This is consistent with environmental statutes generally and also with Canada's constitution.
[8:45]
Amendment approved.
Section 20.4 as amended approved on the following division:
|
YEAS -- 33 | ||
|
Petter |
Priddy |
Edwards |
| Cashore | Barlee | Charbonneau |
| Jackson | Pement | Beattie |
| Schreck | Lortie | Lali |
| Conroy | Smallwood | Hagen |
| Blencoe | Barnes | B. Jones |
| Lovick | Ramsey | Pullinger |
| Evans | Doyle | Hartley |
| Lord | Randall | Kasper |
| Simpson | Brewin | Janssen |
| De Jong | Fox | Hanson |
|
NAYS -- 6 | ||
|
Wilson |
Farrell-Collins |
Dalton |
| Jarvis | K. Jones | Tyabji |
On section 20.41.
J. Tyabji: Hon. Chair, I'd like to talk a bit about the concept of tacit consent and the minister's statement that if government pollutes, government pays. Under section 20.41(1) it says: "A person who is responsible for remediation at a contaminated site is absolutely, retroactively and jointly and severally liable to any person or government body for reasonably incurred costs of remediation of the contaminated site, whether incurred on or off the contaminated site."
First of all, how is that section reconcilable with the minister's statement that if government pollutes, government pays and with the fact that the minister has stated previously in debate that although the government has permitted -- in terms of selling permits -- certain allowable levels of pollution, it is now, after the fact, trying to get that person to pay for it?
Hon. J. Cashore: That defies comprehension. This is a general statement of a broad principle on the remediation of a site. It is the joint and several liability provision. There is no connection between this and land that government may have polluted. That is not even part of the section that the hon. member has cited.
J. Tyabji: From my perspective, the fact that government has admitted -- as the minister has admitted already -- to have permitted pollution means that to that extent government has polluted land. As the parliamentary secretary for Environment is going to talk about waste permits, we will also talk about toxic dump sites and ocean dump sites and the fact that the government has permitted it. We talked earlier about the permits for agribusiness. I see the Minister of Agriculture is watching the debate.
If the government has allowed, by law, permits to be purchased for the purpose of a certain level of waste and that level of waste has subsequently caused contamination, then -- as in the previous section -- we have tacit consent being suggested in terms of the person responsible. Government was responsible for adjudicating the acceptable level of waste and sold the
[ Page 7280 ]
permits for that level of waste. That implies tacit consent. The minister has said that if government pollutes, government pays. Under this section it says that a person -- and we know that a person is defined to include a government body -- who is responsible is absolutely, retroactively and jointly and severally liable. Does it not follow that the government must recognize that it has a liability?
Hon. J. Cashore: The hon. member is not understanding the intent or meaning of these words. Where it refers to government body, it is saying that the polluter is responsible; a person who is responsible for remediation at a contaminated site is absolutely, retroactively and jointly and severally liable to any person or government. So it's when they are liable to that person; it is not implying in any way that government has caused the pollution. The comparison that the hon. member is making is really not.... There was a valid question asked on a previous section about whether the government would ever be liable. We dealt with that question, but in this instance that's a non-starter because this is just a general statement of a principle about joint and several liability. In this case, it's identifying a person or government as the body to whom they are jointly and severally liable.
J. Tyabji: The minister has not understood my question. I'm not talking about the second part of this statement where it talks about "to any person or government body." I'm talking about the first part where it says: "A person who is responsible...is absolutely, retroactively and jointly and severally liable...." If we go back to our definition of "person," we know that it includes a government body and any director, officer, employee or agent of a person or government body.
In the previous debate we talked about the fact that if government pollutes, government pays. We've also talked about tacit consent. It follows logically that the government has given tacit consent to the pollution that has caused the contamination. Given that that is the case, does the government not recognize that the first reference to `person' also involves the government, as the government has been permitting water permits and, basically, acceptable levels of pollution, which may have directly resulted in contaminated sites?
Hon. J. Cashore: The notion that because we permit something, the government is liable is a non-starter. That is simply not correct, and it's a false assumption. Section 20.31 deals with persons responsible. That was a section in which that was dealt with. In the wording of this particular section, we are simply stating the broad principle of joint and several liability. In this case, the hon. member is referring to the first part of the sentence where it refers to a person, and she connects that definition back to possibly include a government. As I've said many times, if a government is responsible for causing pollution, then the government must pay for that, just as any other party would have to pay. The responsible party pays.
J. Tyabji: Perhaps, for the purpose of trying to find out where the liability rests, the minister could explain to me why the Ministry of Environment has been issuing waste permits and basically pollution permits historically. Why would the Ministry of Environment bother to set acceptable levels of pollution, if not for saying that going beyond that is not acceptable to the government?
Hon. J. Cashore: Permits are defences to prosecutions. They have nothing to do with liability. If the hon. member is questioning the fact that permits exist, then so be it. Let the hon. member make that statement and live with the consequences of it.
The purpose of this bill is to deal with liability. Permits are not a defence against liability. This is not a criminal process underway here; this is a process to protect taxpayers.
J. Tyabji: I don't differentiate between the taxpayers and the people who have also put in capital investment and gone through the valid, existing permitting process. I don't understand the minister when we're talking about liability in this section.... When we talk about the permit being a method of defence, I believe it is. I believe that when any business comes to this minister and asks: "At what level is it acceptable for me to make certain wastewater or air emissions?" and this minister sets standards, there is some level of defence against this kind of retroactive legislation. The reason I'm looking at this is that we're talking about absolute, retroactive joint and several liability. That indicates to me that the very government body allowing the levels of pollution resulting in the contaminated site has to recognize some retroactive liability, rather than passing it on to the industry that went through due process, exercised due diligence, stayed within the confines of the laws as they existed then and is now in a situation where it is going to be penalized after the fact. Could the minister please explain to me how the ministry can set those standards and then ignore them for the purposes of liability of the government, when those standards were not good enough? Shouldn't the research have been done beforehand or at the time? Isn't it really negligence on the part of the government that has resulted in the contamination?
Hon. J. Cashore: Permits have nothing to do with contamination. For instance, if a permit allows waste discharge, that is not equivalent to contamination. That is a different process altogether. The hon. member is clearly and intentionally separating two very distinct processes. The polluter is liable. That principle existed in law prior to this act coming into effect. It exists in the Waste Management Act now; it exists in the waste management acts of every other jurisdiction in Canada. The fact that it exists in the present regime of the enables it to function appropriately in the interests of the taxpayer.
[9:00]
As this hon. member continues to argue for the taxpayers having to pay the cost of pollution caused by polluters, she is taking a position that is absolutely
[ Page 7281 ]
indefensible. It is not supported by the public. To be an advocate in this House for polluters is an absolutely incredible and inappropriate position to take, as this hon. member is doing at the present time.
J. Tyabji: It's really disappointing to hear the minister misrepresent what I'm trying to say. If pollution has taken place with the blessing of this ministry, and if somebody has followed the laws and pollution has resulted from it -- but because of gross negligence on the part of the government which has overseen it and given permits and tacit consent -- then how can the government retroactively pass legislation to punish somebody who followed the laws as they existed at the time?
There are not two separate issues here. A contaminated site can result directly from the permitting process -- as we mentioned earlier in the case of a factory farm, where you could have pollution of a watershed because of a poultry farm. There are some specific examples of that. You could have pollution of a watershed because of farming and pesticide use in the Fraser Valley, where everybody has followed the law. Yet after following the law, they are going to be penalized after the fact.
I am not arguing against the taxpayers; I'm arguing that people have to feel some comfort that legislation isn't going to be passed after the fact. That wipes out their ability to feel any comfort that there won't be some kind of anti-compensation or gross penalty in the future or that the existing level of operation might be offensive to a future government, and further retroactive legislation might be passed.
G. Wilson: On the same point, I might try to give the minister an example of what the member for Okanagan East is referring to. Hopefully we can enlighten this minister about what we're asking questions on, so that he won't misrepresent the position of the member for Okanagan East or the direction that the Liberal opposition is taking on this bill.
For example, let's take the permitting process right now for the application of herbicides in areas that are under reforestation in rural regions, where water licences are granted for people to take water for domestic water supply from river systems. If, in the permitting process, we find that the residual effect of herbicides contaminated those water systems to the degree that either the well water or the river system was no longer potable and therefore no longer drinkable without some form of treatment, and if that falls outside the regional district's jurisdiction and within the provincial government's jurisdiction -- and that's not an unrealistic or unusual problem -- given that the Ministry of Forests will have permitted, and the Ministry of Environment will have blessed such application of herbicides, those contaminated water systems are now polluted and may be seen as a contaminated site under the definition of this bill.
Who is paying for that? Should it be the forest company that applied it? Are there any circumstances in which the government and the Ministry of Forests are liable for the permitting? Are they in any way complicit? Is there a system where there can be some comeback against the Ministry of Environment, which quite likely will have gone against public protest in the application of herbicides in that watershed area? Who exactly is going to pay the bill for that? If I understand what the minister is saying, the person who applied the herbicide is going to pay the bill. The fact that it was permitted and that testing may demonstrate without doubt that it has contaminated that system surely means that the government is complicit in the pollution of that system. Therefore the government must have some liability in the courts of the province of British Columbia. If the minister is saying it doesn't, then I think that's a real revelation as to what's intended in this bill.
Hon. J. Cashore: Hon. Chair, the permit is no defence.
G. Wilson: It's encouraging to know that the permit is no defence, but no defence for whom -- the person who applied it or the government that issued it? Clearly we're not going to have a situation where no litigation will be brought against the government.
Hon. J. Cashore: Hon. Chair, it's no defence for the polluter.
G. Wilson: Then is it a defence for the government? If the government has issued these permits under the Forest Act, for example, or under Ministry of Environment regulations, and then we find that there's a contamination of a water system, does the government absolve itself of any obligation or responsibility?
Hon. J. Cashore: Hon. Chair, the entire point this hon. member is making is irrelevant.
G. Wilson: Well, it will be interesting for the people of Kleindale in my riding, who have been fighting tirelessly to stop herbicide application in the watershed areas up behind that residential community and have worked with the regional district with some cooperation. They find it difficult to get the Ministry of Forests to recognize the importance of what they're saying. They find that B.C. Hydro also has an application because of the overhead wiring system going to the Cheekye-Dunsmuir, and they're now putting in an application for herbicides -- both of which are permitted by this government. It will be interesting for them to know that the contamination of their water system, which will not allow any kind of protection as a result of government liability for such permitting, is irrelevant to the people whose water is contaminated. They will be most interested to hear that the minister thinks that.
Hon. J. Cashore: Hon. Chair, with this legislation, the parties that are causing the contamination -- if they are -- will be more cognizant of the importance of not causing that contamination. This legislation is designed to deal with that very issue. The hon. member should be delighted that this legislation is going to help
[ Page 7282 ]
deal with that concern, because it will make those parties more conscious that even though they have a permit, they still have to recognize their responsibility for the impacts their activities are having on the land, if it is deemed after a site profile and proper investigations that their activities have resulted in contamination of the site.
G. Wilson: If the world was a perfect place, we'd all be happier people, and amen to that. Let me ask the minister this: if the government is aware of violations in the application of herbicides under the permits issued, if the minister decides -- as has been the case in the past, not necessarily by this minister -- that violation of such permits have not been acted on, and if the government does not act upon such violations but in fact may by variance provide some authority for the contamination to continue, does the minister feel there is any obligation or liability of the government under this section of the act? Or is that also the responsibility of the applicant?
J. Tyabji: Under section 20.41(2), we see:
"For the purpose of this section, costs of remediation means all costs of remediation and includes, without limitation, (a) costs of preparing a site profile, (b) costs of carrying out a site investigation and preparing a report, whether or not there has been a determination under section 20.3 as to whether or not the site is a contaminated site, (c) legal and consultant costs associated with seeking contributions from other responsible persons, and (d) fees imposed by a manager, a municipality, an approving officer, a division head or a district inspector under this Part."
Where I'm not clear is that the word that seems to be missing from this section is "reasonable." It seems to be a blank cheque, because the phrase "without limitation" is a bit alarming. Also, where it says "legal and consultant costs associated with seeking contributions from other responsible persons," who is seeking those contributions and why? Are we going to have to wait for the regulations in order to get a better idea of this section, or is this all we're going to see?
Hon. J. Cashore: If the hon. member looks at subsection (1), the third line down, it refers to "reasonably incurred costs." But in terms of the word "reasonable" being applied to subsection (2), it's a point of law that if the government or any other party was behaving in an unreasonable way, they could be hauled into court for that.
[E. Barnes in the chair.]
J. Tyabji: I think we all know that the courts get to be extremely expensive. But beyond that, the question I was asking is: are we going to have to wait for the regulations to get a better idea as far as section 20.41(2)(c): "legal and consultant costs associated with seeking contributions from other responsible persons..."? The questions that comes to mind are: who is seeking those contributions, why are they seeking them and where do they get the idea as to what they need to ask?
Hon. J. Cashore: We don't control that; the marketplace does.
J. Tyabji: I don't know that the minister understood my question. Subsection (2)(c) is talking about costs of remediation without limitation, and it says: "legal and consultant costs associated with seeking contributions from other responsible persons." Let's say that I was out to remediate a site, I knew that I had to get a site profile and I looked at the bill and said: "Okay, here's the site profile I need. I need a site investigation, and I'll look to the regulations to find out how I have to meet that." How would I know what legal and consultant costs were needed? Who is seeking those contributions? How do you define "other responsible persons"? I'll ask my first question again: will we have to wait for the regulations to really understand what this section is all about?
Hon. J. Cashore: This is standard fare. If one private party sues another private party, there should be the possibility for the private party suing the other party to recover their costs.
J. Tyabji: Unless I've misunderstood this section, I don't know who is suing whom. What I'm seeing here is that the person who is responsible for the remediation has to pay the costs and that these are the associated costs. I'll go back to my first question: do we have to wait for the regulations to get a better idea, or will this be all we will see with regard to the associated costs for remediation that someone is liable for?
Hon. J. Cashore: The party who has made some expenditure in seeking to recover the costs of the remediation can go after the party responsible.
J. Tyabji: I understand that there will not be any further regulations for this section. I would like to state for the record that I think this is extremely vague and that we could end up, for example, with a government-ordered remediation without limitation in terms of costs, which could bring in legal and consultant costs and any kind of contribution from "other responsible persons," plus all the various fees that might be imposed by managers, municipalities, officers, division heads or district inspectors. Is that correct? And I'm assuming that it could only be a government-ordered remediation that the responsible person would get charged with. Or is there an avenue through this act for a third party to conduct the remediation and bill the person responsible?
Hon. J. Cashore: Subsections (2)(a), (b) and (c) are not subject to regulation; subsection (2)(d) is.
J. Tyabji: Then I will go back to the other question. Is it possible for a third party to conduct a remediation and, through this act, bill someone who is deemed to be responsible by this act for that, which would be without limitation in terms of costs?
Hon. J. Cashore: Yes, under subsection (4).
[ Page 7283 ]
J. Tyabji: What would be the limitations with regard to a person conducting a remediation? Will there be regulations to determine this? Let's assume that I come forward and say, "I have remediated this site and this is the cost that I have incurred for the profile and the investigation, and here are all my friends -- the consultants -- who have these bills," and I want that person to pay me back because that's the person responsible. It says that any person who incurs these costs may pursue an action. How is that regulated? How is that monitored?
Hon. J. Cashore: In response to the question asked at the very end of the statement, it would be subject to a private action. If somebody decided to sue someone, then it would be subject to that process and what ensued from the process. With regard to an earlier comment the hon. member made regarding how we define the impacts of subsection (4), you have to go back to subsection (2) and the entire answer is there.
[9:15]
J. Tyabji: Under subsection (3) -- obviously we have canvassed this to some extent under subsection (1) -- when we talk about the introduction of a substance in the environment not being prohibited by any legislation so that this applies notwithstanding that, and notwithstanding cancelled, expired, abandoned or current permits, could this minister please share with the House whether or not, if there were a current permit contributing to contamination of a site, that permit would therefore be repealed or the person holding the permit would be informed that because of the subsequent contamination that person would be responsible for remediation as per this act.
Hon. J. Cashore: We do not knowingly have permits causing contaminated sites.
Section 20.41 approved.
On section 20.5.
Hon. J. Cashore: I move the amendment to section 2 of the bill modifying the proposed section 20.5(7) standing in my name on the order paper. [See appendix.]
The new subsection is proposed to balance adequate enforcement power with the need to provide clarity for industry and lenders.
Amendment approved.
On section 20.5 as amended.
J. Tyabji: Under subsection (3) -- the manager's discretionary ability to undertake remediation -- I am assuming that the chief concern with regard to the immediacy of the remediation being ordered by the manager is the potential migration of the contaminants, particularly as related to local water sources, and more specifically, if there is a problem with regard to human health or further degradation of the environment, that the manager would take quick action on that and subsequently follow-up through the previous section to ensure that the costs were covered by the person responsible. Is that correct?
Hon. J. Cashore: Yes.
J. Tyabji: When we talked about Bill 26 in second reading -- and I think also in Bill 32 -- we talked a bit about existing pollution, where situations existed for some time and there had been contamination of a site as a result of that. For the purposes of this section and particularly subsection (3), where we've got a potential migration of the contaminants, would this apply to septic contamination -- for example, a subdivision that had a history of problems with a poor septic system? In that case, would there be immediate action taken on the person responsible for that? Is that correct?
Hon. J. Cashore: Yes, if it was a serious and continuing human health problem.
J. Tyabji: Then I would assume that the Wood Creek subdivision in the community of Gibsons, which has come to this minister's attention before -- where the last coliform count was 27,000 because the septic system has been failing for nine years -- is that the kind of thing where we would see immediate action taken by the manager responsible? Is that correct?
Hon. J. Cashore: Yes, it could be, but not necessarily. It could be dealt with through provisions in other legislation, such as pollution abatement powers.
J. Tyabji: Well, we know that this problem has existed for nine years and hasn't been dealt with through that legislation.
Under section 20.5(4), we're talking about "who shall be ordered to undertake or contribute to remediation" under the other two subsections "without jeopardizing remediation requirements." To what extent will there be an attempt to determine wilful intent of the people who might have been contributing to the pollution? Or does that matter? It seems to me that so far in our canvassing of this bill the intent hasn't mattered. In fact, even when someone's gone out of their way to meet the standards of the ministry, that hasn't resulted in their penalty being any less. So to what extent under subsection 20.5(4) will wilful intent be considered in determining potential contribution to the remediation?
Hon. J. Cashore: That would be a factor to consider given the due diligence referenced in point 20.5(4)(b)(ii).
J. Tyabji: Under section 20.5(5) we have: "A remediation order does not affect or modify the right of a person affected by the order to seek or obtain relief under an agreement, other legislation or common law, including but not limited to damages for injury or loss resulting from a release or threatened release of a contaminating substance."
[ Page 7284 ]
Could the minister please explain that subsection, because I'm having a hard time understanding its purpose.
Hon. J. Cashore: This subsection confirms that a person receiving a remediation order is not precluded from seeking relief -- for example, in the form of contributions from other persons.
J. Tyabji: So the reference to "relief under an agreement, other legislation or common law" is only with regard to financial costs that could be shared by other people, or is that also relief from this legislation?
Hon. J. Cashore: Any agreed-upon form of remediation.
J. Tyabji: So I'm to understand, then, that it is not referring to relief from liability under the purposes of this act. Is that correct?
Hon. J. Cashore: Yes, that's correct.
J. Tyabji: Under section 20.5(7), we have: "If a manager has issued a remediation order or a pollution abatement order under section 22...no person shall do anything without the written consent of the manager that results in (a) any diminution or reduction of assets...including without limitation (i) disposition of real and personal assets, or (ii) subdivision of land...."
So am I to understand...?
The Chair: The minister on a point of order.
Hon. J. Cashore: This is a very gentle point of order. It's just that this section has been dealt with in the amendment and is now no longer applicable.
J. Tyabji: I forgot to note that on my bill. I'll look to the amended section, then. As I read section 20.5(7), the purpose is basically to freeze the assets of the people who are considered liable for the remediation until the costs of the remediation have been completely taken out of those assets -- is that correct? -- or at least paid by that person who is liable.
Hon. J. Cashore: It's until the terms of the remediation order are satisfied. But I think we're out of order in discussing this, as it's dealt with in the amendment that has been passed.
J. Tyabji: So far in the debate, we've been discussing the sections as amended, and we have been dealing with the amendments in the sections as amended. My understanding is that that's what we're doing right now. If that's correct, I will just keep going. Otherwise, I would have dealt with it before we had the hoist vote on the amendment, but that wasn't in keeping with what we've been doing.
The Chair: I think the hon. member is correct in that understanding. Please proceed.
J. Tyabji: The question then is: to what extent are personal assets of the person who is considered liable for the remediation costs also to be frozen to meet the financial obligations that would be incurred by the remediation order?
Hon. J. Cashore: I apologize. I was in quick consultation with staff, and I would like the hon. member to ask that question again.
J. Tyabji: With regard to subsection (7), which talks about the person who has received a remediation order having their assets frozen until the costs of the remediation have been taken care of, and not being able to diminish or reduce assets that might satisfy these conditions, to what extent does that include the personal assets of the person involved? In that reference, for example, if it turned out to be an operator of a pulp mill, and the pulp mill assets are frozen, to what extent would that individual who was considered to be liable have his or her home and/or possessions also frozen?
Hon. J. Cashore: The language includes the word "could" in the fourth line down. It could be involved, but not necessarily, and it would be in rare instances.
J. Tyabji: I also note that in the event of that individual choosing to sell some of those assets, the manager may commence a civil action against the person for the amount of the diminishment or reduction. I wonder if the minister could walk me through this example. If it turns out that the remediation cost would be $10,000 and the assets were $500,000, and the person diminishes their assets in the course of doing business by $50,000, which would be in excess of the remediation cost, is that something that would fall under this law, or are we just looking for a case of there being only $10,000 in assets and the cost being $10,000 and that's why it's being frozen?
Hon. J. Cashore: That example is a non-starter. It's where we're dealing with something like the dumping of assets and then going over to Switzerland overnight and there being no ability for the offended party to recover their costs. We're dealing with situations that need to be dealt with reasonably here. The scenario the hon. member defined is simply a non-starter.
J. Tyabji: The minister may consider it a non-starter, but it happens to be a scenario that is possible under this section of the bill. Since the minister used the example of someone dumping their assets and putting them into a bank in Switzerland, how could this subsection of the bill have any impact on preventing somebody from doing that unless the minister is to say that when they came back into the province they would be charged with some kind of civil offence? How could this subsection affect that?
Hon. J. Cashore: The bill enables the offended party to go after these people.
[ Page 7285 ]
J. Tyabji: I'm sure the minister realizes that it's very difficult to go after someone in a foreign country if their assets have been put into a foreign bank. I don't think this subsection is going to help. You couldn't even give them a slap on the wrist for that.
Further to that, the unfortunate thing is that the scenario I painted is possible under this subsection. We could have some poor farmer and all he or she has is a tractor, and the tractor ends up being frozen for the purpose of the remediation costs, and then they have no way of liquidating to keep their family viable. That's possible under this subsection, but the other scenario isn't. Having said that, I guess we won't get anywhere with the minister on this.
Subsection (9) says: "A person who has submitted a site profile under section 20.11(8) shall not directly or indirectly diminish or reduce assets at a contaminated site, including without limitation (a) disposition of real or personal assets...." Could the minister please explain to me what he envisions that meaning in terms of the implications that that would have on the person who is affected by it.
Hon. J. Cashore: This is to ensure that assets are not moved off-site in anticipation of an order.
J. Tyabji: The thing that causes me some concern is that it says very specifically, "a person who has submitted a site profile," and this minister pointed out that a site profile is an embryonic part of this process, so we could be months and months away from being at a final determination of whether or not the site is contaminated. "A person who has submitted a site profile...shall not directly or indirectly diminish or reduce assets...including without limitation... personal assets...." Could the minister please describe for me how that would translate in the event of a farmer, or somebody who might be in a system, let's say, where their own personal septic system is failing and they can't then diminish their own personal assets until the end of the process? How long is this process supposed to be from the point where you file a site profile to the point where you are finished with the remediation process?
[9:30]
Hon. J. Cashore: I wonder if I could beg your indulgence and just refer to the motion I moved for this amendment. It's my understanding that the motion should have stated section 20.5 and should not have included subsection (7), which I believe I read into the record when I moved that motion. I just wanted to clarify that the motion standing in my name should be the same as it is in the order paper, which should read, "section 20.5," and I should not have included (7) when I stated it.
The Chair: Thank you, hon. minister. That's understood.
J. Tyabji: I'd like to ask that question again with regard to subsection (9). The main question, to try to abbreviate this, is: how long will someone's personal assets be frozen if they are frozen from the time that the site profile is filed until the end of the remediation process? How long is that going to be? To what extent will this section be enforced in the example of a farmer, or somebody who has a small business, and those assets being deemed frozen until the end of the cleanup?
Hon. J. Cashore: This only applies to sites that are in receivership.
J. Tyabji: Could the minister please point out to me where reference is made to the site having to be in receivership?
Hon. J. Cashore: Refer back to 20.11(8). Just go up the page a bit, where it says subsection (9), and the reference is made in 20.11(8).
J. Tyabji: I remember we canvassed that to some extent with regard to the definition of "receivers." However, the last question remains: how long does the minister think it would take from the time of the site profile being filed to the time when the cleanup process is finished and the assets can therefore be unfrozen?
Hon. J. Cashore: That's based on the consent of the manager. The usual scenario would be about two days.
J. Tyabji: I'm sorry. I couldn't hear the minister's response. I thought he said two days. Two days from the time of the site profile being filed to the clean up being completed or until the time when the assets are no longer frozen? Is that correct? Did I hear that?
Hon. J. Cashore: The assets could be frozen for a considerable time if the remediation is taking a considerable time. However, if there were an application to the manager to free up some of the assets, there could be a turnaround time of about two days on that.
J. Tyabji: So there is also a process for the person to make an application to the manager to release some of those assets, and that application would take two days? Just for clarification, is that correct?
Hon. J. Cashore: Yes, hon. Chair, that is right. The words I just referred to are "written notice" in section 20.5(9)(b), the first line.
Sections 20.5 approved as amended.
Section 20.51 and 20.6 approved.
On section 20.61.
Hon. J. Cashore: I move the amendment to section 2 of the bill modifying proposed section 20.61 standing in my name on the order paper. [See appendix.]
Amendment approved.
[ Page 7286 ]
On section 20.61 as amended.
G. Wilson: I wonder if the minister can tell us what the purpose of the amendment is? Why do they not want to maintain subsection (3)? Why remove it?
Hon. J. Cashore: I assume that the hon. member is referring to the amendment standing on the order paper in my name. Is that what the hon. member is referring to?
Subsection (3), which originally provided that a person should not diminish assets at a site subject to a voluntary mediation agreement, has been removed. The development industry was concerned that this provision would have an adverse effect on business transactions and would discourage use of voluntary mediation agreements through its effect on lenders.
G. Wilson: Can the minister explain why the government would not want to secure those assets rather than allow them to be diminished? It seems to me that there's a greater protection to maintain that than to give it up.
Hon. J. Cashore: Other provisions in this bill provide adequate security for the government to ensure that assets which could be used to satisfy the terms and conditions of a voluntary mediation agreement are not disposed.
J. Tyabji: Section 20.61 reads: "A manager may, on request by a responsible person including a minor contributor, enter into a voluntary remediation agreement...." The question I want to ask the minister is: would the manager be more inclined to prioritize the agreements that he or she would be entering into -- most specifically with minor contributors, if that's the only avenue -- to be looking for the potential spread of the contamination? In that event, would the government, for example, be looking at an avenue of doing the remediation, doing the entire cleanup itself, and then billing people after the fact?
Hon. J. Cashore: The point of this is not a situation in which the government would be doing the remediation. The point of this is that those responsible for the pollution would be doing the remediation.
J. Tyabji: The question that comes up when we're talking about voluntary remediation agreements arises in the event of the government having determined liability of both a minor and a major contributor with regard to a site. If there is a potential for the spread of the contamination downstream, or wherever, and a potential threat to human health, would the government step in, order the remediation and then bill the people and/or do the freezing of assets allowed in the other sections of the bill?
Hon. J. Cashore: Yes, that is possible, if the remediation is not proceeding satisfactorily under a voluntary agreement -- in other words, if the party failed to reach agreement that would result in appropriate remediation.
J. Tyabji: Considering that we had such public access to the information in the site registry, to what extent will the remediation agreements be public documents? And how will that happen?
Hon. J. Cashore: In keeping with everything we covered when we dealt with the access-to-information aspect before, it would be filed on the site registry and it would be readily accessible.
Section 20.61 as amended approved.
On section 20.7.
Hon. J. Cashore: I move the amendment standing in my name on the order paper. [See appendix.]
Amendment approved.
On section 20.7 as amended.
J. Tyabji: Just briefly under this section, getting back to the point about imminency of migration, we're got subsection (2)(e): "migration of contamination off the site." To what extent will there be some kind of prioritizing of these factors by the manager in determining the need for the order?
Hon. J. Cashore: No.
J. Tyabji: I'm not sure I understand the minister's answer. It seems to me that he's saying: "No, there will not be a prioritizing of these factors." Is that correct?
Hon. J. Cashore: The factors all have to be weighed. They're not on this list in order of any type of prioritization. The factors could all vary in terms of their significance, depending on the circumstances relating to each factor.
J. Tyabji: Will there be any regulation accompanying 20.7?
Hon. J. Cashore: Not likely.
J. Tyabji: So basically, what we have for public consultation and review is what we see before us here. The reason I'm concerned is if we get bogged down in the event of having a contaminated site with a high potential for the migrancy of the contamination. It's not that I disagree; I do agree with the idea of a public consultation process. But if our panel of experts agrees that there's a potential for migrancy and for problems with human health, and we allow (g), (h), (i) and (j) to be bigger factors than (e), which is migration of contamination off the site, or (d), the impact on the environment, and most particularly of (f), the potential for long-term health, environmental or financial
[ Page 7287 ]
impacts, then I think there's a problem if there isn't any prioritizing of these things.
As I stated earlier, the immediacy of the potential for migration should be one of the biggest factors in driving an immediate cleanup so that the problem doesn't expand. I could imagine that there might be a public process that occurs concurrently with the remediation, but if the remediation isn't undertaken as soon as possible, the situation would get worse.
Hon. J. Cashore: The ordinary appeal procedures would be available. As I pointed out before, you can't place a quality prioritization order on this list because the impact of each aspect could vary in each unique instance.
J. Tyabji: I know the hour is late so I don't want to belabour this, but I do want to say for the record that I believe you have to prioritize these things, and one of the highest priorities has got to be containment of the contamination. A high potential for migration is something that should be dealt with right away. If a fire occurs in your house, you don't call a committee meeting to find out how to deal with it. You contain the fire first, and then you can talk about it afterwards as far as how you could have prevented it and ways to deal with it better next time.
Section 20.7 as amended approved.
Section 20.71 approved.
On section 20.8.
J. Tyabji: Could the minister please define "independent remediation"?
Hon. J. Cashore: Under this section independent remediation can be pursued without the mechanisms discussed in earlier provisions -- for example, remediation orders. A person selecting to undertake independent remediation does so at some risk, since he or she must demonstrate satisfactory remediation if a certificate of compliance or a conditional certificate of compliance is subsequently applied for.
[9:45]
J. Tyabji: Therefore an independent remediation is remediation that is taking place prior to an order existing. I know that we're on this section, not another one, but in a previous section we canvassed a situation where someone who had undertaken a remediation could then pass the cost back to the person who was considered liable. In that situation that we canvassed earlier -- and I hope the minister knows which situation I'm talking about -- would that have been, of necessity, an independent remediation? The example I gave at that time of.... For example, if I went out and decided to remediate a site, and came forward with a stack of bills and said, "This is what I've done; this is how I've cleaned it up...." For the purposes of independent remediation, is that something that would have less validity unless there was a lot of proof? Is the burden of proof that adequate remediation took place on the person who conducted it? How does that relate to having the person that the government considers liable pay the costs in the end?
Hon. J. Cashore: The right of cost recovery is available to an individual who has undertaken independent remediation, so that is a route that an individual could take. They could undertake remediation on their own and then seek cost recovery after having done so.
J. Tyabji: Is this something that is retroactive? For example, under this bill a vendor of a contaminated site must make disclosure of that contamination prior to the sale. We do know that there have been examples in the past of a gas station or a pulp mill where there's been contamination or PCB spills on site that haven't been reported, and the person who purchases it then has to pay for the cleanup. If there were a case in the past where this has happened, and there was direct liability that could be traced to the previous owner, and the subsequent sale -- I can think of a couple of examples right away of gas stations where a leaking gas tank was sold as part of the sale and the new owners had to pay for the cleanup.... Is this going to be retroactively applied, where the costs of that remediation can now be given back to the original owner, the person who could be found liable? Or is this from this day forward?
Hon. J. Cashore: As I said before, to the extent that they are eligible to recover costs, if some of those costs occurred before, then that is within the realm of possibility. So it is retroactive in that sense.
J. Tyabji: A simple question, then. So I'm to understand that it is possible for those who have purchased a contaminated site without knowledge of the contamination to now retroactively pursue that person who sold it to them for the costs of the cleanup that they had to incur after they purchased it.
Hon. J. Cashore: Those liability principles that the hon. member is referring to were covered in an earlier section of the act.
The Chair: The Leader of the Third Party.
Interjections.
The Chair: Opposition House Leader...Leader of the Opposition. It's getting late, hon. members.
F. Gingell: Yes, it is getting late, hon. Chairman.
As I understand it, the questions asked by the member for Okanagan East deal with the retroactivity of recovering costs expended in a time prior to this bill coming into force. Do I then take it from what you say.... I presume that in fact you are opening up every single site that has been sold in the past to owners of that site from now until the origination of land titles in this province, i.e. there isn't any cutoff point?
[ Page 7288 ]
Hon. J. Cashore: The rights to cost recovery would come into effect upon proclamation of this bill. However, under other legislation, parties could pursue action in that way. But if they want to pursue action with regard to this act, it would be subject to the date of proclamation.
F. Gingell: I'm sorry, the answer has confused me somewhat. So you are saying that the costs could subsequently be recovered only for independent remedial actions taken after the proclamation of this act? I thought that in your answer to the member for Okanagan East, you suggested that costs incurred prior to the proclamation of this act could be recovered.
Hon. J. Cashore: No, that wasn't the answer I gave. That was not in reference to the date of proclamation of the act. The question by the hon. member for Okanagan East was not in reference to the date of proclamation of the act. We were dealing with whether or not previous costs could hypothetically be recovered in a situation that occurred at a point in time following the proclamation of the act. In answering questions about this legislation, we're assuming that it's what obtains after the legislation becomes law. But with regard to the question about going after cost recovery, there would be opportunities in common law.
F. Gingell: Has your ministry considered whether the provisions of the various statutes of limitations will apply in these circumstances?
Hon. J. Cashore: I am advised that under the statute of limitations, if you want to recover your costs, you have to do so within six years. But with regard to the cost recovery on remediation, that aspect of the bill is retroactive.
F. Gingell: The question I had focused more on the statute of limitations with respect to the action of contamination.
Hon. J. Cashore: No, it doesn't apply there; that's retroactive.
J. Tyabji: I think we've had a few mixed messages here. My understanding from reading this bill is that independent remediation can occur, and that because this bill allows for retroactive absolute joint and several liability, the independent remediation that would occur in the event of the property having been purchased in good faith -- however, the property was contaminated -- is that the person can then go after the person who sold him that site for recovery of costs if liability is traced to the original vendor. If that's correct, could the minister please confirm that for us?
Hon. J. Cashore: That is right -- for the recovery of costs that occur after the bill comes into effect.
G. Wilson: I just have one question with respect to section 20.8. I want to ask it, as it is likely to also be relevant to 20.81. It has to do with the information respecting independent remediation suitable to a manager. Under subsection (4) it says that the manager may "(a) review the remediation in accordance with the regulations...." But then under (b) it says "issue an approval in principle, a certificate of compliance or a conditional certificate of compliance...." What is the significance of that in light of what we have seen in the preceding sections? I ask that only because I'd like to pursue that line of questioning under 20.81.
Hon. J. Cashore: Subsection (4) confirms that even though a person conducts independent remediation, he or she may request that the manager review the remediation, issue approvals in principle, certificates of compliance or conditional certificates of compliance.
G. Wilson: I can read it too, but I am asking what it means. If you're talking about the issuance of the conditional compliance or if you're dealing with a question of principle, does that mean there is going to be a secondary process? I ask that because I want to come back to it in section 20.81.
Hon. J. Cashore: It means that the person seeking remediation can go to the manager and say: "Approve my remediation plan because I want to get on with the process of going to the bank and getting the financing that I need in order to proceed with it."
Section 20.8 approved.
On section 20.81.
Hon. J. Cashore: I move the amendment to section 2 of the bill modifying proposed section 20.81 standing in my name on the order paper. [See appendix.]
Amendment approved.
On section 20.81 as amended.
G. Wilson: I hope that this is an appropriate section to ask a couple of questions. I note with interest the deletion of "in a landfill," and the substitution of "at another site." It's a pretty scary proposition, because it implies.... First of all, does the minister envisage that an approved and permitted landfill within a municipality could serve as a site for contaminated goods? Secondly, "at another site" presumably implies that the same kind of regulation or bylaw under the Municipal Act and the Waste Management Act, as permitted, would apply in this case. Is that what the minister is saying? Are these toxic waste sites going to be licensed by the municipalities?
Hon. J. Cashore: It could apply to a landfill. It could apply to other kinds of sites. It's all-encompassing.,
G. Wilson: If it could be a landfill or another site, that doesn't restrict it to be disposed of on land. Is that correct?
[ Page 7289 ]
Hon. J. Cashore: We still control that through (5)(a) and (b), but this does not allow toxic waste to be deposited at such a site.
G. Wilson: As I understand the amendment -- which we have just passed, so we can discuss it -- it says: "in subsection (5) by deleting `in a landfill' and substituting `at another site'...." Therefore, subsection (5) would read: "Nothing in this Part prevents a person from depositing soil from a contaminated site at another site where the deposit is authorized by...." It goes on to talk about the valid permitting. If that can be deposited at another site, and it doesn't restrict it to a landfill, does that mean that it could be a permitted disposal that is in water, in approved dumping sites, as is happening now? As you remember in the second reading debate, I talked about contaminated material out of the inner harbour of Vancouver being deposited into Howe Sound.
[10:00]
Hon. J. Cashore: We are constrained by the ocean-dumping requirements of the federal government, but they have very high levels of restrictions with regard to these substances. I have a briefing note that I can make available to the hon. member which responds to questions he was raising on this subject during estimates. I can assure the hon. member that the issue he has been raising with regard to the dumping of toxics into ocean sites is, according to all the information that I can amass, wrong. Also, when the hon. member was invited during estimates to send me a document to update me, he was concerned that I did not have this document that he claimed he had sent. He said he would send it again right away; it was not sent again right away. I have said to the hon. member that if he does send me that document again, we will respond to it. But we have a briefing note on that topic, which will assure you that where that activity may have taken place in the past, it is not taking place at the present time. However, I digress.
In terms of this section, that is not precluded, but I cannot imagine a circumstance in which that would happen, given the present requirements under the federal law.
G. Wilson: I'm not going to get into.... I don't know how many times I have to send this information to the minister. Notwithstanding that, we're interested in trying, given the lateness of the hour, to get through this bill, not in debating why it seems so difficult to deal with some material that's been sent.
The fact is that under this section.... If nothing in this part prevents the person from depositing contaminated soil on another site, and then it goes on to say: "Notwithstanding section 20(4)" -- this is in subsection (7) of this section -- "...this section does not apply if (a) a bylaw of a municipality, or (b) a permit, licence, approval or other document issued under the authority of a municipal bylaw establishes standards or procedures for testing, excavating...." Is the implication of this that municipalities will now be able to establish, or that there may be the potential for them to establish by bylaw, disposal sites that would bypass this bill?
Hon. J. Cashore: Subsections (6) to (8) provide immunity for municipalities and their officials for bylaws, permits, licences and approvals, etc., relating to contaminated soil removal or deposit, except where the bylaws, permits, licences and approvals, etc., conflict with the provisions of the Waste Management Act or regulations. The contaminated site or soil involved belongs to the municipality.
G. Wilson: Given that the minister is reading his briefing note, maybe he can now explain it in some detail. Hopefully he has that explanation for us, because what I'm hearing him say is that the Waste Management Act -- a permitting process by the provincial government, which is currently an authority that affects the municipalities -- will apply but that this bill will not, and that municipalities have immunity from the regulation and restriction in this bill. Is that what you said? Or have you said the opposite of that? Which is it? I was confused by what you said.
Hon. J. Cashore: The municipalities have immunity in setting their bylaws as long as they do not conflict with the purpose of the act.
G. Wilson: As long as they don't conflict with the purposes of the Waste Management Act as amended; we understand that.
That draws me, then, to the next question, which has to do with the provisions under subsection (6) immediately above. I ask simply with respect to the authority that is granted to the Islands Trust, the Municipal Act or the Vancouver Charter.... I think the minister can read subsection (6) for himself, but the reason it is important is that clearly issues are arising where the Islands Trust may wish to become a direct participant but under the Municipal Act doesn't have the same or similar authority as that of a municipality. Could the minister comment on whether or not the same immunity would apply to the Islands Trust?
Hon. J. Cashore: If the hon. member would refer to subsection (6), fifth line down, it refers to the Islands Trust Act.
G. Wilson: I just read out that line from subsection (6), so I am referring to it. I am asking whether or not, in the implication that is in here, the minister concurs that the Islands Trust Act would provide the same level of immunity to those communities governed under the Islands Trust Act as would be granted to a regular municipality or regional district?
Hon. J. Cashore: They are all treated in exactly the same way.
J. Tyabji: I know that earlier this morning, when we introduced the first amendment to this bill and talked about the receiving site, the minister referred us to section 20.8(1) when we were talking specifically about
[ Page 7290 ]
the potential for a first nations jurisdiction to be the receiving site. The minister said that under this section we would be debating the possibility of entering into and complying with the terms and conditions of a contaminated soil relocation agreement. The minister indicated at that time that section 20.8(1) would prevent the possibility of the soil relocation taking place most specifically on first nations land. Could the minister please elaborate on that, since we are on that section now?
Hon. J. Cashore: Subsection (2) says: "A manager may enter into a contaminated soil relocation agreement with (a) the owner or operator of a site proposed to receive contaminated soil, and (b) a responsible person of the contaminated site from which the contaminated soil is proposed to be removed...." That is what I was referring to earlier as a three-way agreement, and that indeed is the reference we were making earlier. This is the section of the act that deals with that aspect of the involvement of first nations. As I have clarified on several occasions during this debate, as it relates to first nations, the jurisdiction is insofar as we are able to see a three-party agreement successfully achieved. Where that cannot be achieved, we have to recognize that we do not have the authority on Indian reserves.
J. Tyabji: However, as the minister is well aware, the minister always has authority with regard to waste management on the non-aboriginal land. So could the minister please share this with the House. If it turned out that there was a three-way contaminated soil relocation agreement -- where the manager was one party to that agreement as a representative of the government -- and the original contaminated site was to transfer that soil to aboriginal lands where there would be resulting downstream contamination after that transfer, would the ministry staff prevent that agreement from taking place?
Hon. J. Cashore: We wouldn't sign the agreement with the other two parties. There would have to be three parties involved.
J. Tyabji: Just so I understand, the minister is saying that in the event of a negotiation taking place -- notwithstanding the fact that it would be with the aboriginal peoples -- if there were a potential downstream negative impact on the non-aboriginal land, the ministry would not then sign the agreement.
Hon. J. Cashore: Hon. Chair, I answered the question; I'm not going to repeat it.
J. Tyabji: Hon. Chair, when we started this debate first thing in the morning, the most important point that we were trying to put forward, which this government actually voted against, was the potential for the receiving site to be an abused location, most particularly if it happened to be a site outside of this minister's usual jurisdiction -- because it fell under the Land Act as it relates to what is referred by the federal government as Indian land.
At this point, I think it's very important for us to have some clarification as to where the minister would draw the lines. We are of the understanding that the minister would not allow, for example, on the non-aboriginal jurisdiction, the receiving site to be a place where there would be downstream contamination.
We can't imagine, for example, that the minister's manager would be signing an agreement where you would take contaminated soil from one place, move it to another, and have leachate and other associated disasters downstream of that.
What I would like for the record, because I haven't heard it, is an assurance from this minister that if there were a three-way agreement covering aboriginal land in which one of the parties was a first nation, would the minister's staff not sign the agreement if there were potential downstream negative impacts on the non-aboriginal jurisdiction, which does fall under his ministry. Could I please receive that assurance.
Hon. J. Cashore: I answered that question before. We would not sign the agreement, whether it was aboriginal or non-aboriginal land. We wouldn't sign the agreement in the scenario that the hon. member has outlined -- for the umpteenth time.
Section 20.81 as amended approved.
Sections 20.9 and 20.91 approved.
On section 20.92.
J. Tyabji: Could the minister please expand on the meaning of section 20.92(1)(b) where it states "an orphan site is a high risk orphan site." This is found under where it says that "a manager may determine in accordance with the regulations whether...." Going back to the previous comment with regard to immediacy and potential for contamination spreading, could the minister give us a better definition of high-risk orphan site or what to expect for the regulations?
Hon. J. Cashore: Where there is a very high risk to human health or the environment.
J. Tyabji: Under subsection (3) I would like to put on the record that we have serious reservations under (b), where we have the phrase: "notwithstanding that the ordered action interferes with or abrogates property rights." That's something that we have a serious concern with. I know we can't amend the bill, but I would like to have that on the record. For the purpose of facilitating the debate, I won't belabour the point, but that's an important point to make.
Hon. J. Cashore: This is standard emergency legislation to deal with an emergency situation.
J. Tyabji: In a previous section, I had canvassed the minister with regard to that very thing, not with regard
[ Page 7291 ]
to the abrogation of property rights but with regard to prioritizing some of the criteria by which a remediation order takes place. I just want to point out that in this section there seems to be some attempt to do that, and that seems to contradict what we talked about before.
Sections 20.92 and 20.93 approved.
On section 20.94.
G. Wilson: To come back to what we were attempting to get some clarification on, I just have one simple question that the minister can hopefully give a simple answer to. It had to do with the potential litigation against the Crown should the Crown be seen to be negligent in enforcement of its own permit if the Crown should be seen, through the granting of that permit, to allow activities to occur that have caused a contaminated site.
[10:15]
We see now, under section 20.94 (1) that there is immunity in terms of the action that may be brought against the Crown, the minister, the municipality, employer and so on. Can the minister tell us whether or not the immunity section of this bill is intended largely to absolve government -- municipal or provincial -- from any litigation that may be brought against them as a result of a permitting process that has created contamination? Is there protection against litigation that may occur as a result of negligence on the part of the Crown, even insofar as that may be through some subjective lack of enforcement, such as a decision taken by elected officials?
Hon. J. Cashore: The immunity doesn't exist if the government or municipality acted in bad faith. Those are the words at the end of subsection (1).
G. Wilson: I wonder if the minister might tell us whether or not he considers bad faith to be the issuance of a permit -- done through staff error or whatever -- that creates a contaminated site. Having done that, does a lack of enforcement constitute bad faith if violations of permits are in occurrence and the ministry opts not to enforce them.
Hon. J. Cashore: Permits are not bad faith and they are no defense when it comes to dealing with a liability issue.
J. Tyabji: I just want to point out that there seems to be quite a double standard under this section in that when we're dealing with individuals or businesses that may be subject to liability under this act, this section goes out of its way to protect local governments from the very things that individuals are going to end up paying dearly for. I wanted to put it on record that in terms of this double standard, I don't understand how the minister.... Earlier in the bill, we repeatedly talked about how we feel it is unfair to retroactively legislate some kind of punishment and cost against something that was legally done with due diligence. Yet in this case we're protecting local levels of government.
F. Gingell: In dealing with these difficult questions of the environment, we realize that the science is always changing. Substances that we considered benign in the forties are not considered benign in the sixties. Actions that we may take in the 1990s, and permits that you may give for particular industrial uses and applications, may be discovered in subsequent decades to be damaging to health. We invented PCBs, and they were a wonderful thing -- some of us don't believe they are quite as dangerous as others do. Have you considered, in the drafting of this immunity section, whether this will give immunity to the Crown where subsequent scientific research and discovery change the perception of certain chemicals or materials or processes that are presently considered acceptable?
Hon. J. Cashore: That is actually covered in the next section, but the Crown will always have a right to require new remediation and new standards.
F. Gingell: The question that I had really dealt with immunity. Current science has led your ministry officials to believe that they are proper and acting in everybody's best interest in approving certain use of a site -- permitting at some point -- and subsequent scientific research discovers that that was a mistake. Would the Crown have any liability in those circumstances?
Hon. J. Cashore: The Crown is protected from liability for decisions it made in good faith.
F. Gingell: I would just like to add one sentence to that, if I may, Mr. Minister, and you could comment, if you would, on whether my addition is fair. The Crown would be immune, but a private owner and private operator wouldn't be.
Hon. J. Cashore: If the Crown caused the contamination, the Crown would not be immune from the remediation costs, nor would a private party.
G. Wilson: Mr. Chairman, noting the hour and recognizing that the opposition has given a thorough review to this bill, we recognize that as we have no further questions on the other sections of the bill, it would be expedient to pass those cumulatively.
Having recognized that, however, and noting that this huge bill was brought in at this late hour, with this massive set of amendments, we can only say that the opposition -- in particular, the opposition critic -- have acquitted themselves well, given the circumstances under which this government dropped this bill on our laps. More importantly, not only has there been an excellent review of this legislation, we also have this minister on record now on a number of very key and important sections.
In concluding our debate, let me just say that the government will rue the day they did not take our advice on two key amendments to the beginning of this bill. One, of course, was to recognize the need to include the location for materials coming forward, and
[ Page 7292 ]
the second was to amend the section dealing with the definition of "government body" to include members of first nations. It is confusing in the extreme to notice all 50 of the members standing up voting against the very principle of first nations government and the very legislation that they passionately debated in favour of in section 32. With that, Mr. Chairman, I think that I'll end the debate.
Hon. J. Cashore: I appreciate that we're going to be able to proceed with these sections. However, I have sections with amendments on the order paper, so I would like to go through them seriatim.
Sections 20.94 and 20.95 approved.
Section 2 as amended approved.
Section 3 approved.
On section 4.
Hon. J. Cashore: I move the amendment to section 4 of the bill modifying proposed section 34.17(d) standing in my name on the order paper. [See appendix.]
Amendment approved.
Section 4 as amended approved.
Section 5 approved.
On section 6.
Hon. J. Cashore: I move the amendment to section 6 of the bill modifying proposed section 31.1 of the Islands Trust Act standing in my name on the order paper. [See appendix.]
Amendment approved.
Section 6 as amended approved.
On section 7.
Hon. J. Cashore: I move the amendment to section 7 of the bill modifying proposed section 85.1(c) of the Land Title Act standing in my name on the order paper. [See appendix.]
Amendment approved.
Section 7 as amended approved.
Sections 8 to 10 inclusive approved.
On section 11.
Hon. J. Cashore: I move the amendment to section 11 of the bill modifying proposed sections 999(2) and 1000 of the Municipal Act standing in my name on the order paper. [See appendix.]
Amendment approved.
Section 11 as amended approved.
On section 12.
Hon. J. Cashore: I move the amendment to section 12 of the bill modifying proposed section 96.1 of the Petroleum and Natural Gas Act standing in my name on the order paper. [See appendix.]
Amendment approved.
Section 12 as amended approved.
Section 13 approved.
On section 14.
Hon. J. Cashore: I move the amendment to section 14 of the bill modifying proposed sections 571B and adding section 571D of the Vancouver Charter standing in my name on the order paper. [See appendix.]
Amendment approved.
Section 14 as amended approved.
On section 15.
J. Tyabji: I wanted to get on the record before this bill passes that we're extremely concerned that we still don't have the regulations that accompany the bill. We have tried to give a thorough canvassing to the various sections of the bill as we believe they will be implemented, but without the regulations we can't really have an adequate assessment of how this will be enacted.
I'm extremely disappointed as well that we had no time at all to canvass the ten pages of amendments that were consequential to this bill, particularly the amendment to the act-of-God provision in an earlier section, which could have very serious implications for people throughout the province. As the member for Powell River-Sunshine Coast mentioned earlier, I also believe that we will have a problem with regard to implementation of the remediation plan as it affects the receiving site, because adequate attention hasn't been paid to what is done with the contaminated soil when it is moved.
D. Lovick: Order. We're on section 15.
J. Tyabji: I'm speaking to section 15 with regard to the act coming into force. It's unfortunate that there was so much haste. A bill of this nature deserves adequate canvassing in the House. With that said, I would put on record that we have very strong reservations about the enactment of this bill.
Section 15 approved.
[ Page 7293 ]
Title approved.
Hon. J. Cashore: I move that the committee rise and report the bill complete with amendments.
Motion approved.
The House resumed; the Speaker in the chair.
Bill 26, Waste Management Amendment Act, 1993, reported complete with amendments.
[10:30]
The Speaker: When shall the bill be considered as reported?
Hon. J. Cashore: With leave of the House now, hon. Speaker.
Leave granted.
Bill 26, Waste Management Amendment Act, 1993, read a third time and passed on division.
Committee of Supply A, having reported resolutions, was granted leave to sit again.
Hon. J. Cashore moved adjournment of the House.
Motion approved.
The House adjourned at 10:31 p.m.
The House in Committee of Supply A; D. Streifel in the chair.
The Committee met at 3:10 p.m.
ESTIMATES: MINISTRY OF TRANSPORTATION AND HIGHWAYS
(continued)
On vote 58: minister's office, $410,000 (continued).
D. Symons: One question, left over from this morning's session, deals with the municipality of West Vancouver. Apparently an earthquake analysis was recently undertaken there by the ministry. I assume this was on the bridge structures and so forth. The municipality didn't specify exactly what was investigated. They'd like to know the status and the findings of that report. They are concerned that they weren't asked for input in the report, but I suspect that's because it was a Highways ministry study of the earthquakeness of the bridges there. Since they would be the ones most likely to be involved in any emergency response, they need to be aware of what the report has in it and how they might be able to respond to any problems that may exist with the structures in West Vancouver.
Hon. A. Charbonneau: You may be making reference to some elements of the study done by Buckland and Taylor on the Lions Gate Bridge. Buckland and Taylor also did a seismic analysis on the Second Narrows Bridge. Beyond those two, there is a very generalized study on what the response would be to a major earthquake with respect to essential services evacuation. I think you mentioned West Vancouver, so the only bridge I can think of would be the Lions Gate, and that is the Buckland and Taylor report.
D. Symons: I'm afraid I can't tell you specifically which bridges they were referring to. When I read the question I thought they might have been referring to those bridges you go under to Horseshoe Bay, but I'm not sure on that.
I have here a news release dated June 14 from the Ministry of Attorney General. It made some comments about the emergency program legislation that is to be introduced. He commented about the three levels involved: the provincial responsibility, the declaration of emergencies and the local government responsibility. It says: "Local governments have the authority to declare a state of local emergency for their jurisdiction and exercise the same powers available to the province." The basis of my question regarding West Vancouver was that they want, I suspect, to be an integral part of any studies that have been done, so they will know what their role would be in any local responsibility.
[3:15]
If we could move on to Richmond again for a moment, since we're dealing with seismic problems, it has also been discovered that the Oak Street Bridge in Richmond lacks some seismic stability. I believe that a company has been brought in to upgrade the pilings or something on the bridge. I'm curious, because I see that the ministry has put a certain figure on that -- and figures were supplied for each riding -- for seismic upgrading or repairs to be done on the bridge. I gather that tests still have to be done on some structures that are possibly going to be used for this concrete that's being poured around it. I'm curious as to how the ministry can have the figure for that job when the testing for possible remedies has not yet been completed.
Hon. A. Charbonneau: The nature of the problem with respect to the Oak Street Bridge is fairly well understood, and hence an estimate for the repair costs or the structural strengthening for seismic purposes is fairly well known -- known well enough that we're comfortable with an estimated cost. The work that is being done will be used as part of detail design, but we don't anticipate that it's going to change the cost very greatly. A detailed analysis of the structure may
[ Page 7294 ]
uncover an element here or there that needs some additional work. We're spending about $1 million to reinforce some beams on the bridge this year. But in terms of the overall project, the Oak Street Bridge project would run close to $30 million. In terms of a seismic upgrading and some critical elements of it, we're in the first year of a three-year project.
D. Symons: I was aware of some testing to be done at UBC regarding the strength of some of the members, for the replacing or reinforcing of some of the members on the bridge, and that's what I was referring to there.
Now, just one last question, before I turn it over to my friend and colleague here. There are great concerns in Langley about the road and rail separation. Apparently a study was released in November 1992. What is the provincial government's role going to be in reacting to the results of that particular study?
Hon. A. Charbonneau: I'm told that we have responsibility for three level crossings in the Langley area. There may be two or three other crossings that the municipality may be responsible for. In order to eliminate all of them, we could be talking as much as $100 million, and there would need to be municipal funds available along with ministry funds.
The federal government has some very limited funds available for level crossings. I don't know the details of that right now, but I could provide them. This is one more cost issue, of course. If we do have provincial funds amounting to $50 million, where would this rank with respect to other priorities in the entire province? It's a safety problem certainly and something that warrants consideration, certainly, but not as high on the priority list as some other problems around the province.
K. Jones: I have a question of interest both to myself and my colleague for Surrey-White Rock on jurisdiction and responsibilities relating to the King George Highway. Could the minister give us a clear delineation of who is responsible for what in regard to the King George Highway between the U.S. border 8th Avenue interchange and the Crescent Beach inter-change?
Hon. A. Charbonneau: The King George Highway is an arterial highway, and as such the ministry is 100 percent responsible for it.
K. Jones: Does the minister have any plans to upgrade that highway, both its intersections and its widening, to four lanes within this next year -- or very near -- in the capital plan?
Hon. A. Charbonneau: No, there are no plans at the present time for four-laning.
K. Jones: Is the minister aware that the intersections of 24th and King George Highway and 152nd and King George Highway are some of the most heavily loaded intersections in Surrey? These have very high accident rates occurring on them. There's a definite need for channelization so that safe left turns can be established. It's particularly noticeable at 24th, since the new shopping centre has gone on the northwest corner of that intersection. It's become a very major thoroughfare across the entire peninsula of south Surrey, right through to the Grandview Heights area actually, to be more correct.
Hon. A. Charbonneau: Intersections all over the province could use channelization improvements, of course. We try to undertake as many as budget permits every year. The ministry officials meet regularly with municipal officials in Surrey and other communities to assess their needs, and if the municipality puts forward a particular intersection as having grave concerns.... I cannot speak offhand about how these intersections relate to others with respect to accident frequency. But if in fact there is a high risk with a given intersection, and the municipality moves it forward as a priority, and if we can assist through channelization, signalization or whatever, then we're certainly willing to consider them on a case-by-case basis.
K. Jones: That's good to hear from the minister. We're really interested in trying to resolve the real serious safety problems we have. Many major intersections in Surrey, where the major urban roads are intersecting with our major highways going through Surrey, are of interest both to the member for Surrey-White Rock and myself, representing Surrey-Cloverdale, which also has the area immediately to the east of the freeway. We both have constituents impacted by these ones in south Surrey.
I also represent areas in Cloverdale that have serious problems with regard to Highway 10. We're very concerned about the lack of safety at such intersections as the King George Highway and Highway 10 -- which is actually in the Surrey-Newton riding, but certainly many of our constituents commute and travel to the ferries through that intersection. King George Highway and Highway 10 is considered to be the most dangerous intersection in British Columbia, I think -- certainly in Surrey it is, by Surrey records. The regional manager is fully aware of it, would like to be able to proceed with plans to get some work done there and needs the appropriate funding authorization to do it.
Basically, in a lot of these it's a matter not of spending a lot of money on this intersection work but just doing some moderate modifications -- maybe not meeting the very high maximum standards put forward by the engineering department of the Ministry of Highways but providing even some short-term solutions to some of these serious problems -- so that the real risk and loss of life and injury at these intersections can be rectified. We want to ask you to maybe reduce some of these very stringent standards so that we can resolve the safety problems at a much lower cost and then proceed with proper designs in the future. But in the meantime, we're stuck with very dangerous situations throughout our ridings. To resolve them they need a change in the road widths that allows traffic to travel over a section of the paved shoulder
[ Page 7295 ]
that's currently not as high a standard. Maybe some slight upgrading of that area could result. Perhaps a narrowing of the lanes would allow for the accommodation within the existing paved areas.
We are stuck with an awful lot of very rigid controls. I can see the ministry officials shaking their heads. They're so stuck on standards that we can't resolve the safety problems that are facing us, and this is something that all members of this House will echo their concern about. So I'd like the minister to seriously consider asking his ministry people to look at alternatives that don't have to be quite as expensive, in order to resolve some immediate needs. I concur with their long-term planning thinking, but let's not let those hold up the resolution of some serious safety problems.
Hon. A. Charbonneau: In some major designs -- whether you accept a 100 kilometre design or an 80 kilometre design or a certain radius on an overpass -- an adoption of a lesser standard can sometimes make sense. It's not likely in an intersection. For example, the shoulder has been designed for a different loading than the main lanes have. You can't go in and put a new footing or a new foundation just under the shoulder in any kind of economic way. Narrowing lanes is typically not a good idea, because it means that traffic has to make a little jog at that point, and that will trigger accidents. Narrowing lanes anywhere, particularly at intersections, will trigger hazards.
Generally speaking, standards are not the problem at intersections. Doing the job right does not cost very much more than doing it wrong, but the long-term payoff is a lot better. So I stand behind the ministry officials fully with respect to intersection standards.
[3:30]
What it does mean, however, is that we can do fewer intersections per year, but the intersections that we do will truly be safer and can perhaps be expected to last 15 years. If we try to do intersections on a baling-wire and binder-twine basis, we will create safety problems and maintenance costs and in the long term will have to tear it all out to do it right.
K. Jones: I'm sorry to hear that, because it obviously indicates some difference between what the line people are saying and what the people who are advising you are saying. Perhaps the minister should talk to some of his line people. A lot of people out there have good, solid knowledge of how to build roads, and their interest is not to compromise any operation or long-term usage.
I've been in the engineering field for quite a few years, and I'm fully aware of the requirements you have for road standards because I have to meet them in my work. There are ways of making work cost a lot, and there are ways of making it cost very little. I'm interested in making it cost very little, so that we can get more of it done. I think that's the minister's intention, too -- certainly his desire.
So we have to find productive ways of changing the process from where we're at to where we need to get very quickly. The growth in this area is tremendous. We can't find the dollars to meet those problems by the old standards. We have to find new ways, and I have no problem with the minister's desire to do that. That makes good common sense, and we may have to change some of our processes, standards and ways of thinking to accommodate that. That is what I am asking the minister to seriously consider.
Hon. A. Charbonneau: Notwithstanding the fact that band width is something different than lane width, and you can get more signals through a light type, I agree. I do agree that we want to, wherever we can by expending a few dollars in a clever way, solve a particular safety problem. We have done so in many locations around the province, and there are times that that works. I just happen to be pointing out that in some instances the acceptance of lower standards is probably not a good idea. But in those areas where we can make a difference in safety through the judicious application of limited funds, I have been urging the ministry to do that all along. You are correct in your observation that by and large, given the tremendous pressure on our system, mainly from growth in the lower mainland, we do not have and are not likely to get the funds to do the kind of work that is necessary. I would hope that in recognition of that, the hon. member would stand up now and take the opportunity to endorse user-pay as a means of raising the funds to do the major projects -- which will leave more funds within the regular budget process to do all the smaller projects we would all like to see done.
K. Jones: User-pay is definitely what is practised right now. People who are paying gasoline taxes are certainly providing a lot of money into the coffers of the province. I am not sure that the money is getting to the Ministry of Highways, and perhaps that is the problem -- not the extra taxation. We also need to make sure that we get a much more efficient operation, and that means cutting back on some of the costly expenditures that go into building highways today.
With regard to my knowledge, it is not only knowledge of band widths and light guides. I happen to have been involved in outside plan engineering for about 16 years, in the processes of building conduit underground services, crossing-roads, cuts and everything like that. I have been involved in backfilling and compacting, in all of the standards of highway building and dealing with highways over many years. It is not new to me. I just want to make sure you do not have that misconception.
I would like to go into another area, and perhaps this is related in that it is one of our areas of extra cost. I would like to find out why a major bridge on the Coquihalla Highway is undergoing a complete rebuild of its deck from the rebar up?
Hon. A. Charbonneau: As I have stated publicly on many occasions over the last three or four years, there have been some problems along different sections of the Coquihalla because a certain previous administration, not to be named herein, rushed the construction of the road in order to meet a political
[ Page 7296 ]
deadline. In so doing, the standards of construction were not what they should have been.
K. Jones: This section, by the way, is in the first phase -- not the last phase you may have been alluding to. This is not the Okanagan connector; this is just out of Hope, in that first section. I believe your assistants already know which bridge we are talking about, and I would like to find out why that particular bridge is having to be resurfaced. Could you also tell us what the cost of that resurfacing is?
Hon. A. Charbonneau: The technical problem at the bridge was superficial cracking of the concrete. Once that starts to occur, you can get penetration of moisture and/or salt down into the reinforcing steel, and then debonding -- the popping of concrete off the surface -- and weakening generally. The only correction for it is to remove the concrete down to the rebar level and put it back in. The cost will be approximately $200,000. I could get you a more accurate figure if you need it.
K. Jones: We would like the present projected costs and then the actual costs on completion. I'd like to know whether superficial cracking is a common occurrence on bridges that are five or six years old or something like that. Is that a fault in the design?
Hon. A. Charbonneau: The normal point in service life that we would anticipate doing something like this would be around the 20-year point. This is occurring roughly eight or nine years after construction. So it is unusual, but once you discover a flaw like this, you have no choice but to proceed and correct it as quickly as possible.
K. Jones: Could the minister tell us who the contractor is on that bridge?
Hon. A. Charbonneau: I and my officials don't know offhand the name of the contractor. I can obtain that and provide it to you. The present work is being done by our own crews.
K. Jones: Since it is being done by our own crews, I presume that we are paying for it and that there's no back claim against the original contractor. Is that correct?
Hon. A. Charbonneau: Yes, you are correct.
K. Jones: Could the minister explain why Highways inspection crews didn't observe the bases cracking at the time when the bridge was still under the warranty of the contractor?
Hon. A. Charbonneau: Because you can't see a crack before it exists.
K. Jones: Just as an aside, the acceptance of a major construction project, such as a bridge crossing a major creek or a river, has some testing processes that would guarantee that the surface would last beyond five or six years without having to have visual indications of a failure.
Hon. A. Charbonneau: Normally the control on this would be the testing of the concrete during the construction period. That was done, and as far as can be recalled right here and now, it met specifications. Subsequently, it has cracked. I have not yet received the report outlining the details of why that has happened, but the tests on the concrete were done at the time.
K. Jones: I have a couple of areas of very definite concern in my riding.
There's a real problem starting on Highway 1 and 176th for the east-turning, southbound trucks coming out of the CN intermodal yards. With the new terminal being established, a large number of trucks are now coming out of there, and there is a very short holding bay for them right in front of the Anniedale school. In order for them to take a left-hand turn when the traffic gives them an opening.... There isn't even a proper turning lane to carry the traffic eastbound, which is something that perhaps needs to be looked into in the very near future. We are going to have a lot of traffic going up there, especially as the new extension of the main truck route is constructed along the Fraser through to the Surrey-Fraser docks and into Delta. There is definitely a need to make sure that there's room there so that the southbound traffic -- which is also truck and residential, and substantially residential because of the large urban area there, plus the Port Kells industrial area, which feeds a large number of vehicles southbound at rush hour -- can go straight through. We need to do something to resolve that. How can we do that?
Hon. A. Charbonneau: Staff is generally aware of the problem -- that the left-turn bay does not have sufficient length -- which in turn causes the problems that you have pointed out. I can seek a more comprehensive answer and potential solutions to the problem, and report to you.
[3:45]
K. Jones: Another serious problem area, and I've observed it firsthand, is at 160th Street and 104th Avenue, just east of Guildford shopping centre. There we have right-turn lanes going east, but we don't have any right-turn lanes going west. The problem has been recognized in one direction, but it hasn't been recognized that this is a problem that goes both ways. The traffic flow is quite substantial -- as the flow out of the Port Kells and Fraser Heights areas comes across the freeway on the overpass and into that intersection from the east, and it tries to turn south on 160th. There are some really scary things going on there, as two lanes come in, people shoot through and try to jump between the cars to go south on 160th. It really needs some good studying -- with a very minor amount of expenditure. There's adequate room there to do things, if the ministry could just put some time and effort into resolving that. I'm aware that the regional manager
[ Page 7297 ]
knows about the problem; he just needs some support from your area so that he can get on with doing that. It's one problem that a lot of people in the community are very concerned about.
I'd like to go across to another area, and that's the border-crossing access road southbound on 176th. We still have that serious problem of buses and traffic going into the duty-free shops and interchanging with the truck and passenger traffic going south. We need that resolved. It's going to require considerable direction to Surrey and participation by your ministry. I think that Surrey had a deal made for a joint funding arrangement, which fell through when the new ministry took over. I would like the minister to take responsibility for resolving that, and to work in supporting the concerns of the municipality of Surrey so that we can get that rectified. I think that a low-cost and very satisfactory response to that serious problem can be established.
Hon. A. Charbonneau: These questions are at a level of detail that we don't have the necessary information with us to make a meaningful reply to. I'll take both questions under advisement and get back to you.
With respect to the intersection situations, if the application of modest amounts of funds can in fact solve a serious safety problem, then we should do it. If we have right-hand turns in one way but not in the other and it can be resolved, again, I think we should look at it.
I understand that there has to be some substantial effort and funds from Surrey as well, in order to effect a solution to the border-crossing problem there. Again, we don't have sufficient details here to give you a full answer, and I'll develop one for you.
K. Jones: Going back to the major highways through Surrey, 168th and Highway 10 is a very dangerous intersection that requires a small change to allow a left-turn lane off Highway 10 eastbound and a run-on lane to go east off 168th. I'd like to have that on record.
With regard to a major arterial through the centre of Surrey.... The Fraser Highway is an arterial, I understand. It is now being built up as an almost open access road, so that turnoffs on it go all over the place. There's an ever-increasing traffic flow there, to the point that there needs to be four-laning and left- and right-turn lanes in the middle perhaps, such as is done on Scott Road. Is the ministry going to do anything to resolve that very serious problem? The whole length of the Fraser Highway to 176th is a serious problem -- from the 152nd area, and actually going further to the west.
Hon. A. Charbonneau: There are no current plans to four-lane the Fraser Highway. It would be an enormously expensive undertaking -- tens of millions of dollars -- to accomplish what you're suggesting. It's relatively easy to protect the capacity of roads if you limit the accesses from the outset and insist that the municipalities and the developers come up with frontage roads and alternative means of access to their projects. But this road has gone so far down the road of virtually unlimited access that it is now extremely expensive to try to pull it back. I would point out to you that the provincial highway network, first and foremost, is designed to move people from community to community. That's the responsibility of the ministry. I am told that most of the traffic along the Fraser Highway is local traffic. As a result, the municipality, in conjunction with the department, should be looking at further developing the grid-road system in order to take as much traffic off this road as possible. I do not believe that going in at this point in time and spending many tens of millions of dollars would be the wisest application of a limited resource.
K. Jones: Actually, that is part of the grid-road system. That is a primary arterial that diagonally intersects Guildford and Surrey Place and also the Cloverdale and Langley areas, so there is no question that this is probably the heaviest diagonal route. It's the shortest route between two points of the urban centres in Surrey, and it certainly is connecting communities. Even though the municipality -- or soon-to-be city -- of Surrey is very large, it has separate communities within it. This is where the province's responsibility comes into play. There isn't sufficient money for the municipality, because of its large size, to be able to handle all the arterial requirements. It's the same problem that's faced by Burnaby, with all the intersecting roads coming through their area.
Can I just ask one further question? Could you tell us why the public affairs director, Dick Melville, was removed from his position?
The Chair: Order, hon. members. We have a division in the main House, and we'll recess this committee to attend the division. At the conclusion, subject to any directions to the contrary, we'll reconvene here. This committee is recessed.
The Committee recessed at 3:55 p.m.
The Committee resumed at 4:07 p.m.
Hon. A. Charbonneau: The question asked by the hon. member is a personnel matter and is not an appropriate question for estimates.
D. Symons: In regard to the last question about the gentleman who was laid off or whatever you want to call it, he was also chair of the National Transportation Week committee for British Columbia. There was some concern that he had worked quite a while on that project, and that even if he was not still an employee of the ministry, it would have been appropriate if you had allowed him to continue to chair that annual.... It seems to us to have been rather a slight to the gentleman, after his years of service to the government, that he was not able to do that.
It is also of concern to us when you say it is a personnel matter. Apparently his report was extremely good just before his termination came through, so it's unusual. I suspect that somebody got a very glowing report and then, after that report, was laid off -- at least
[ Page 7298 ]
as far as the public is concerned -- with no apparent reason.
The Chair: The hon. member for Richmond Centre on vote 58.
The hon. member for North Vancouver-Lonsdale on a point of order.
D. Schreck: Hon. Chair, the standing orders provide that a member, upon taking his seat, cannot speak twice without an intervening speaker. I appreciate that it's clearly up to the Chair to determine whether that has occurred. But the standing orders do provide that a member may speak no more than 15 minutes, and there must be an intervening speaker to resume debate.
The Chair: Thank you, hon. member, for your input. The hon. member for Nanaimo on vote 58.
D. Lovick: Thank you, Mr. Chair. I was listening with rapt and passionate attention to the comments from the member for Richmond Centre, and I am certainly looking forward to a continuation of his remarks.
D. Symons: Well, on the point of order raised there, I suppose that 90 percent of the various estimates debates would be contravening the orders if those orders are such that they apply to the committees as well -- I'm not sure; I'll have to check on the rule to see whether that's the case. But I thank the member for allowing debate to continue.
A while back I asked a question about Langley, and I'd like to move back to Langley. There were some concerns about the improvements at 200th Street -- which they thank the minister and ministry for, because it certainly has moved things along that road very much better than before, now that it's four lanes for most of the way. Unfortunately, there's a small bit left up near the Highway 1 interchange where it's created a bottleneck. It moves along so smoothly to that point, at which point we now have a bottleneck, so there are some concerns about that. While I'm at it, there are also some concerns that maybe Highway 10 is due for some four-laning between Ladner and Highway 1 past Ladner. So maybe those two points could be covered.
Hon. A. Charbonneau: The 200th Street project is completed up to the point where a new interchange would take over, but that's an expensive undertaking we have not been able to proceed with at this time. With respect to your question about the Ladner bypass, the gist of it that I got was: when would we be doing something with respect to 17 past Ladner?
D. Symons: Four-laning up to Highway 1.
The Chair: Hon. members, through the Chair, please, if you want it to be part of the record.
Hon. A. Charbonneau: In the long term, the resolution of the problem through Ladner is to build a bypass around Ladner to a new interchange on 99. I've spoken to the mayor of Delta on several occasions about this project. The municipality would love to be spared the ferry traffic that at present comes through the middle of their community. If I've missed your question, I apologize -- you can ask me again.
D. Symons: No, I missed the community. I may have inadvertently said Ladner -- or you said Ladner, anyway. But we're not on 99-Ladner. We're in Langley, and joining Highway 10 through to Highway 1, and just asking if that could be four-laned. We were in the wrong community for a moment there.
Hon. A. Charbonneau: Just so I'm certain, are you speaking of Highway 10 east of Ladner, connecting to the Trans-Canada Highway? There is a section in there that needs to be four-laned all the way from the Ladner.... I have forgotten the street it is on, but from the point where it crosses the Southern Railway line all the way along that rail line and then on over to the Trans-Canada, it could at some time become four-lane. I would point out that improving the capacity of Highway 10, in the long run.... It is choked through Langley and Surrey in many places. The long-term alternative would be to develop an entirely new route a little farther south, perhaps down around Highway 16. In the meantime, there are a few sections of Highway 10 that could be upgraded as funds permit.
[4:15]
D. Symons: Let us move on to Hope. A little while ago I heard the minister and someone else mention the infamous Laidlaw bluffs, where there continue to be rockfalls. The lane closest to the bluff is frequently closed off because of debris on the highway. The road maintenance crews should not be responsible for cleaning up a situation that should have been corrected years ago. There have been two serious accidents at one spot, one involving a fatality. Extensive work in fitting some terracing is needed to make that portion of Canada's national highway safe. When will the ministry deal appropriately with this dangerous situation? It seems that halfway measures have not worked.
Hon. A. Charbonneau: The nature of British Columbia is such that we have roads all over the province that are plagued by rockfalls. It would be nice to be able to correct all of them. The situation at the Laidlaw bluffs, to my knowledge, with the information given to me, is that since that road was four-laned in 1986, some $1,180,000 has been spent on slides or rockfalls in seven years. A million of that was spent in a single event in 1992. Aside from that single event, about $180,000 has been spent over seven years, which is not that great a sum. We have other situations along many of our major highways that would be even more pressing than this. To go in and do that kind of rock-scaling, benching, rock sheds or relocation of roads would cost us many hundreds of millions of dollars that we simply do not have.
We take the risks very seriously. The major roads are patrolled by our contractors and our own area
[ Page 7299 ]
managers quite frequently -- in the order of no more than every four hours on our major highways -- and then we do the very best we can. The contractors do the best they can in cleaning up any rockfalls. To go along to all of the places where we have rockfall hazards, hundreds of millions of dollars would not be a high estimate.
D. Symons: I understand the minister's concerns and his problem with the price of it. I don't know if any of the other areas he has mentioned have the cost of life and continuing problem that the Laidlaw bluffs have. Certainly that one is more familiar to me. Maybe there are others just as bad, but it certainly seems to be a bad one.
The member for Yale-Lillooet brought up the question about the Fraser Bridge, so I won't revisit that, except that I would like to ask one thing. When that work does carry forth -- you're in the design stages now.... There have been some concerns expressed by the community about flooding near the proposed causeway that's going to join it on the Hope side. I would also like to know if it's intended that tolls be instituted on the rehabilitation work to pay for that once it is completed. If they are to be placed on there to pay for the upgrading of it, will the tolls come off when the costs have been recovered, or would they be kept on to pay for other projects?
Hon. A. Charbonneau: My recollection of that area would place that roadway and the abutments far above even a 200-year flood, so I'm not certain what your reference to flooding of the approaches might have been. It may be local drainage, but certainly not Fraser drainage. In any works that would be contemplated there, the local runoff would be evaluated and any deficiencies corrected. It certainly had not been my intention to institute a toll when we are able to complete the work on the bridge, but if the member wishes me to contemplate it, I'll take it under advisement.
D. Symons: I would like it recorded that I was simply inquiring as to the minister's intentions. I was not making any suggestions or recommendations, so we must have that very strongly in the record, please.
Moving along the Hope-Princeton Highway, quickly up to the interior and into Osoyoos, last year the ministry again began to work on the intersection of Highways 97 and 3. I'm wondering what the current status is. Has that work been completed? I was up there last summer and the road south of that intersection to the U.S. border was more reminiscent of a country road than it was of a major gateway to our interior. Has this section of 97 been improved, and if not, what plans are there to complete this section of highway?
Hon. A. Charbonneau: Due to efforts to get the deficit under control, starting last year, I had to delay the completion of the intersection work at Highways 3 and 97. We cleaned up the site and made it as presentable as possible, and it has been in that condition since. We are not able to undertake any works within our regular budget this year; however, I'll inform the member opposite that we have the potential in a strategic highways improvement plan -- a federal government program that provinces can put matching funds in. I have added the intersection of 97 and 3 to a list that I've submitted to the federal Minister of Transport, and should I obtain approval from the feds, then we would do some work at the Osoyoos intersection.
I might also point out that from the Nighthawk junction to Osoyoos, we are doing a repaving, a rehabilitation of shoulders, and expending about $2.2 million.
D. Symons: I did notice when I was up there last summer that they were doing a rehabilitation of Highway 3 leading out of Osoyoos to the east, and it was improving that road greatly. I was hoping that the member for Okanagan East would be here to ask some questions, so I'll skip over that for a while and see whether she's able to make it.
Moving to the member's own riding in Kamloops, there was some conflict regarding the expropriation of some riverfront land in Savona for the construction of the new bridge. A Mr. Shaw felt that Highways might be taking the land on behalf of the parks branch rather than as a necessary part of the approaches for the bridge. Has this dispute been fairly settled to Mr. Shaw's satisfaction?
Hon. A. Charbonneau: I'm pleased to say that there's a piece of shorefront along Kamloops Lake and on to the Thompson River, referred to locally as Steelhead Park, that was a historic site for paddle-wheelers that tied up there. The mule trains would come up the canyon, transfer goods onto the paddle-wheelers and carry on up into the Thompson and the Okanagan. The opportunity arose to purchase it, when the holder of that property passed away. The government has purchased it and has turned most of it over to Environment for a park, I hope.
We needed a new right-of-way adjacent to and passing through part of the park to accommodate the approach to the new Savona Bridge across the Thompson, and so the Ministry of Transportation and Highways benefited from the purchase as well. There was a relative of the individual who passed away who did not want to give up certain land that we were prepared to take. I acceded to his wishes. We have redesigned an intersection in a modest way to avoid this parcel of land, and Mr. Shaw in fact stopped me on the streets of Kamloops to thank me personally for having spared his property.
D. Symons: Often we hear of the problem but we don't always hear of the solution, so it's nice to hear that people are content with what's taken place there -- in your case they seem more than content, which is wonderful.
In the southeast region of the province, tenders were called for the Castlegar-Robson Bridge in October, and the ministry's news release estimated the cost to be at $26 million. The tender was awarded in January of this
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year for a figure of $14 million. So I'm just wondering why it was $26 million when the news release came out on the project, and yet the awarding of the tender seemed to be $14 million. Are there other things that will be tendered later to make up the cost of $26 million? Or were there substantial changes to the project? Or were the ministry's estimates that far off base?
Hon. A. Charbonneau: The $26 million was a project figure. It includes a roadway leading up to the bridge, acquisition of properties and intersections to existing highways. All told, I believe that the estimate of the ministry is correct, and I expect we'll be bringing that project in much to the satisfaction of the people of the area.
D. Symons: Satisfaction is hardly the right word. They have been quite anxious for quite a while for either the return of the ferry or the building of the bridge, and at last they're getting it. So they're extremely happy about that.
I asked last year about some needed realignment of the intersection of Highways 3 and 22. Has that work been done?
I'll just carry on with the next question. Parents have expressed concerns over safety for children at the Kinnaird Elementary School and want pedestrian lights at the 24th Street intersection. Since this road is considered a part of Highway 22, there is some feeling that the Ministry of Transportation and Highways should share the cost on a 60-40 basis. What has been the response to this request?
Hon. A. Charbonneau: I'll take those two questions on notice and provide you with a written response.
D. Symons: Could we move on to the city of Trail? In January this year the ministry completed a study of the Warfield hill. I am advised that there was willingness to consider a bypass route. This dangerous area requires more than just the additional signage that was recommended after a serious accident last summer. What's the status of this project?
Hon. A. Charbonneau: Following another incident with a truck -- fortunately no one was killed, but it came very close -- the situation was brought to my attention. Upon looking at the file, I found that the ministry has been approached six or eight times over the last ten or 15 years, and many promises had been made to the citizens of Warfield that something would be done about it. But over that period of time nothing was done.
[4:30]
I'm pleased to say that in addition to the signage -- which has helped moderately to minimize the chances of uninformed drivers getting on the road by mistake, because that quite often happens -- we are looking at the possibility of a realignment or a bypass. The study is proceeding. It is not funded at this time, but the mayors of Rossland, Warfield and Trail are -- I believe it's fair to say -- delighted that some attention is being paid to this problem, and they're delighted to have received a commitment from me to resolve the problem.
D. Symons: I caught an error in the words. There is a study underway, but it's not funded yet. So I assume that it's a commitment to a study on that problem.
The city of Trail has applied to the ministry for financial assistance under the bridge assistance program for the redecking of the old Trail Bridge. I think they want a hardwood surface on there. They want 75 percent of the cost, and I'm wondering what the minister's response to that request has been.
I'll just skip to another question on Trail at the same time. Highway 38 through Trail, for the most part, is now four lanes. However, there is a section -- the eastern Glenmerry area -- that's only two lanes. It causes a serious bottleneck. Also, three intersections in the area need upgrading and better traffic control signals in order to improve safety. I wonder if you might be able to answer those concerns.
Hon. A. Charbonneau: In a trip to Trail, the bridge in question was pointed out to me. It is owned by the municipality. The Highways bridge is not far from it. Indeed, the decking of the bridge is in a poor state of repair, to say the least. They approached us for some funding for a project that would have seen a substantial upgrade of the bridge. We have suggested to them that they could rehabilitate the bridge back to an acceptable level for far less money. They have that under consideration. We anticipate that they'll come back and apply for some help on that basis, and I anticipate that we're going to be able to help them.
With respect to your other question, there's a bit of confusion on this side. Are you referring to Highway 3B or Highway 38?
D. Symons: Highway 38.
Hon. A. Charbonneau: We don't have a Highway 38, so if you could identify the community it's passing through, we'll identify the highway.
D. Symons: I suspect a problem. I noticed that my writing was terrible when this was typed up for me. Where I wrote Trail she typed travel, so maybe I wrote 3B and it came out 38. The 38 is closer than the travel was to Trail, but obviously my scribble was not legible to my assistant. I assume that 3B is the correct highway, rather than 38.
I wonder if we could just move on to Nakusp, and you might answer that on 3B then, in Trail. There were some concerns there regarding the need for improved highway design and construction on Highway 6 -- I hope I'm correct on that one -- in particular; if wood chips are going to be trucked along this route, that something could be done to upgrade it so that it will be safer. Apparently the Celgar Pulp mill at Castlegar will be taking chips along that roadway, and they will be looking for an upgrading of that.
Serious consideration is requested regarding a section of Highway 6 from Bench Creek to the
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Inonaoklin Creek crossing which is in serious need of reconstruction. Finally, they have an S-curve at Summit Lake on Highway 6 that needs to be straightened. At the present time, this section presents a real safety concern.
Hon. A. Charbonneau: I'm familiar with the section of Highway 6 between Vernon and Fauquier. I think that is one of the sections you're referring to. There indeed needs to be some upgrading of a ten- or 15-kilometre section that probably dates back 30 or 40 years. There's another section between Nakusp and New Denver on another portion of Highway 6 that you may be referring to. In both instances the work would be desirable -- welcomed by local people and by people who travel on Highway 6 regularly. It will also cost many tens of millions of dollars to accomplish the straightening and widening that would be required.
I would point out, in passing, that it is not determined at this point in time if the chips will be hauled to Celgar by truck. There is a barge transportation study underway to determine whether or not it would be more economical to move the chips coming from the north to Celgar by barge rather than by highway.
That aside, these roads still need improvement for other commercial traffic and for recreational traffic such as motor homes and cars with longer trailers -- for many reasons. Again, it is many tens of millions of dollars that we don't have at the present time.
I might take this one step further, and suggest that a lot of the issues you are raising have been raised on numerous occasions by the municipalities, the UBCM, at the Kootenays regional meeting, at the Okanagan Mainline Municipalities Association meetings, on Vancouver Island and in the north. It might be a more efficient use of time for you to provide me with a list of the questions that deal with the details of an intersection: whether lights may be required or whether an upgrading might be done. That sort of information is just not available, and is usually not gone into in estimates. We usually deal with more overarching questions, except where individual members may, from time to time, ask something about a project in their constituency. If the member opposite is interested in cutting short some of this, frankly, we could handle it over a coffee, or by you submitting a list of the smaller questions. We could probably develop better answers for you if we took them all on notice.
D. Symons: I thank the minister for that offer. There are only about six more of this particular type of question, so we might as well finish them off.
Part of the reason may be what I would quote next. I'm quoting from the Cranbrook Daily Townsman, December 29, l992. I'm hoping that what is said here in this report in the paper will have changed -- the situation between then and now -- because we're dealing with this five or six months later.
"Mayors from towns and cities along Highway 3 who met recently found they have at least one thing in common: anger at the Ministry of Highways.
"'Efforts undertaken by many local governments along Highway 3...to gain recognition...of specific problems fail with predictable regularity and certainty.' Among the improvements the group considers essential for the highway are...."
Sorry, I won't read that part, but they are concerned that the Ministry of Highways is not open to them and not involving them in a consultative process. Maybe in the intervening months some of their concerns have been met, and possibly you can give them some good news.
Among the improvements the group at that time were considering essential to the highway are the addition of more passing lanes between Cranbrook and Yahk, the rebuilding of the intersection at Cranbrook Street and Van Horne, and some improvements in the Moyie bluffs area. Is there any good news for the people up in that area around Cranbrook?
Hon. A. Charbonneau: I know that almost every community in the province has its wish lists, and improvements they would like to see that would facilitate tourism or commerce and provide employment -- many good reasons. Contrary to what the statement in the newspaper was, I have found that in all of my meetings with mayors and councils from around the province -- and I've met with them all, I think, several times -- I receive a lot of compliments for ministry staff for projects that have been or are being undertaken, for the amount of public involvement and consultation, for the way mayors and councils always have been able to access information, for information shared with them, and for their concerns being listened to and brought into the process.
I know improvements can be made in many places along Highway 3. Last year at various times I drove Highway 3 from Hope right out through Crowsnest Pass -- virtually every kilometre of it -- and several sections I drove more than once. There are some very nice sections, sections rebuilt over the past decade or two, and new sections built up to standard. One is the new cross-link coming out of the Castlegar bypass, the new Highway 3 alignment -- a very nice piece of work. Yes, other improvements can be made. But by and large the communities along Highway 3 have been listened to and the work is there on the ground to prove it.
D. Symons: I drove that highway myself last summer and, as you say, some parts of it.... Particularly, that part going into Castlegar is certainly a well-improved part of the highway. I suppose the one problem still there is the Moyie bluffs that the newspaper article referred to. I'm skipping a few items here. I think that they are pleased in Kimberley that your improvements are going ahead on Highway 5A to Wasa, but they were hopeful the Ministry of Highways would follow through on a promise to do some road improvements in Marysville. The changes there have to be made before they continue the downtown revitalization program. If we can just skip that answer and maybe go to Fernie as well, we can cover two at once here. Fernie is concerned over the continuing postponement of the widening of Highway 3 through Fernie. They're also concerned that the proposed closure of the weigh scales will lead to further deterioration and reduced opportunity to monitor truckloads. I believe the weigh
[ Page 7302 ]
scales are going to be moved further away from the border, and they're concerned that this will add to highway problems for them at a later date.
[4:45]
Hon. A. Charbonneau: Again, on many occasions in various conversations both in Victoria and at regional municipality meetings, all of these issues have been raised and discussed. What I have said to all mayors and chairs of regional districts is the same thing: yes, I recognize the legitimacy of your request; yes, I agree it would be a benefit to your community; but no, I am unable to deliver such and such a project now, because I don't have the money in my budget. They have all heard a consistent view of that, and most of them have been thankful that in fact they did hear a straight answer. There was no blame shuffled off to staff; there was no, "We'll take another look at it," to put them off six months at a time. They received a direct answer that under the present financial circumstances I do not have the $300 million or $400 million or $500 million or $600 million to meet in aggregate all of the requests of all of the municipalities and the additional $5 billion or $6 billion or $7 billion to make the major improvements in the system that we all know are necessary. The member opposite can raise issue after issue or point after point on behalf of communities, and again my answer stands: they're valid and they do reflect the views of the communities, but we do not have the funds to proceed on them at this time.
D. Symons: I notice that you're getting exasperated with my questioning, and your own members, when they were in opposition, were doing the same thing. I quote from Hansard of July 16, 1990, when the present member for Prince George-Mount Robson said: "I can't let this debate go past without calling the minister's attention to the absolutely disastrous state of our highways in the north." You can see that your own member, who now happens to be a minister in your government, was doing precisely what I'm doing today: raising these issues with you. So I'm not doing anything that your own members have not done. We see what this particular member was asking for in Prince George, and they continue to place a high priority on Highway 97. They want a grade separation on Pacific Boulevard, four-laning of the bridges, four-laning the highway at the BCR subdivision and improved lighting along portions of that part of the highway. They also feel that the location of the weigh station presents a dangerous situation, and that it should be relocated. Are there any plans for any of the above, so that the minister from Prince George-Mount Robson would be able to take them back to her people and say: "Look, our government is dealing with that"?
Hon. A. Charbonneau: Virtually all these issues were raised at Port Hardy, and the answers were given to the respective mayors and council members.
D. Symons: I wonder if we might move on to a different topic, the ATAP or air transport assistance program. Where does the funding for this assistance program appear in the estimates?
Hon. A. Charbonneau: For 1993-94 and other years, you can find the amount under vote 59, as transportation policy, planning and municipal programs and, within that, transportation policy and planning. The amount for this year is some $8,326,000. Embedded within that is the ATAP funding.
R. Neufeld: I have a few quick questions for the minister dealing specifically with my constituency. I would be completely remiss if I didn't ask -- and I am sure the minister is anticipating the question -- about the Beatton River crossing. I can understand that there is no money in the budget, the way you have it organized in your party, but I would like to be able to tell the people in Fort St. John and the people who live across the river about when the ministry anticipates, in all seriousness, that they can start working on joining the bridges and alleviate the problem the people have with crossing a very antiquated bridge and a road that is quite unsafe. I don't know whether or not the minister has been over it, but I'm sure he has been briefed on it many times. It is a very unsafe road for the truck, farm and logging traffic that it handles. Could the minister give some kind of an idea of when he feels that could be done?
Hon. A. Charbonneau: I anticipated that the question might be with respect to the Beatton River. As you know, there have been five or six bridges built, and the roadway not completed. It is about halfway through a $25 million project. So about $12 million or $13 million has been spent, and about $12 million or $13 million is required to complete it. In putting projects on the shelf, one thing I had to consider was the relative urgency of projects around the province. Although I had not driven the road, I was taken pictorially down it by a delegation from your constituency, and I think I got a very good picture of the condition and the potential for a slide. Their concern is that should a major slide occur, they might be isolated until such time as a road could be rebuilt.
On the other hand, it is my understanding that the traffic count on the road is less than 1,000 cars a day. We have pressing and urgent matters; we have traffic volumes of 100,000 cars a day in places where we've got severe congestion, severe safety problems, and it's very difficult to balance between the pressures. The monetary pressure where we have the stupendous congestion pressure and projects in the hinterland of the province that would be very worthwhile.... Being from the hinterland, I share some of those views. But when a project requires $12 million to facilitate the movement of less than 1,000 cars a day and I could apply that $12 million, were it available, to projects that could serve ten or 100 times that level of traffic, these are very difficult decisions. This time around, last year and this year, because of the shortage of budgetary funds, I've had to leave the Beatton River road out of the ministry's plans. At such time as we are able to restore funding to a reasonable level, the Beatton River
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road would be one that would come back on the priority list.
R. Neufeld: Well, I find it interesting that we're relating it to traffic counts, although I can understand where the minister is coming from. Less than 1,000 cars a day.... And I can appreciate that in the lower mainland there are areas with much more traffic where the money could be expended. But using that rationalization for construction in the north -- and I've argued this not just with you, but with other ministers from my party using those same arguments -- it doesn't really fall fairly on the people who live in the so-called hinterland, the north. I think we all know that the north contributes an awful lot to the province of British Columbia. We know that people in the north are upset with some of the returns -- sometimes rightfully so and sometimes not -- they get from their respective governments in roadbuilding or anything like that. If we were to lose that road and the traffic and commerce in that area -- the Boundary Lake area, the Cecil Lake area, Galato Creek and all those areas -- to Alberta, because it could go to Alberta fairly easily from where it's at, I think we would find quite an impact on the government that would not be favourable. I don't want to see that happen.
The other thing is that when we use traffic counts, it reminds me of what happened in Fort Nelson where the Alaska Highway goes right through the middle of town. For quite a number of years people walked across the highway constantly, and there wasn't a proper crosswalk. For years we did traffic counts because, according to the book, you have to have so many cars before you can have lights on a major highway, and this type of thing. A lady died because the traffic counts weren't enough to put the lights in. It makes me think that it's not fair that we have to finally have the death of a person before we react to those types of things. I'm not saying that there could be a death here, although there could be, in a major slide. There could easily be a death in the trucking industry -- trying to negotiate that hill with heavy loads -- just because the traffic count isn't up.
I know the same thing applies to intersections and roads in the lower mainland, but I would really like to see for the people of Fort St. John -- we've invested, like you say, about $12 million or $13 million in bridges -- that we now start connecting the roads so that we can get this behind us once and for all. It would create an awful lot of employment in the north. It would be good for the construction industry there; it would help them along. It would help public safety. I know that applies all over, but I don't really appreciate having to use a traffic count to get to a point where we finally build a piece of road.
With that, I'll just go on to another issue in Peace River and that's the Taylor Bridge. I understand it's let out for tender to be finished in the next two years. Could the minister tell me what the estimated expenditures are over the next two years to finish paying for the Taylor Bridge?
[5:00]
Hon. A. Charbonneau: With respect to your last question first, the coating of the Taylor Bridge was underway when an accident occurred that cost a young man his life, and he was the second young man who lost his life working for that particular firm. I pulled the firm from the job, and because of the time of year, the project had to be shut down. I'm sure that this decision was correct and that the changes we're bringing in with respect to prequalifications will result in safer job sites, particularly on our most hazardous jobs -- bridge coatings in particular. So that's the reason for the delay. The job will be finished over the next two years at approximately $1 million a year in order to complete the coating.
With respect to your earlier comments that you don't like to see traffic counts used as a yardstick, I too wish it was not that way. But the point is that in the various constituencies we have -- if we were to list them all out -- hundreds of intersections that require improvements: signalization, many dozens of pedestrian overpasses and many other improvements to intersections in terms of channelization -- all that in addition to all of the requests for upgrading of the highways generally. Quite clearly, the list would add up to $8 billion or $10 billion. We have to have some system for determining when we signalize an intersection, when we rebuild a curve, when we put in guardrails. We cannot do it all; I think everybody acknowledges that. I don't think you're suggesting that we should increase taxes by $300 million a year so that we could do the additional work, nor do I think you would suggest that we could take the $300 million out of health care or education. If we have limited resources and an almost infinite number of projects to spend them on, it is not fair to put staff in a position of going with the squeaky wheel, going with whoever mounts the strongest drive or the greatest letter-writing campaign, or whatever it is -- whoever can exert the most pressure gets the signalization; whichever mayor makes the most eloquent presentation gets the pedestrian overpass. That would not be fair.
We try to take an objective approach. What are the traffic counts? How many students must cross the road? What are the sight distances along the road? For visibility, what's the lighting? Are there traffic lights nearby that create natural openings in the traffic, whereby a student or a pedestrian can get across the road safely? We try to bring a number of objective, measurable factors into the equation, so to speak. When the equation exceeds a certain value and the intersection improvements or the signalization or the pedestrian overpass is warranted, we go ahead and put it on. They come in as a priority; everybody gets their turn within the means of the ministry.
Although it may not be a perfect way of doing it, I think that it's a far better way than doing it on a hit-or-miss basis, depending on who makes the most emotional or the most eloquent appeal. It's not fair to put pressure on staff to constantly choose between this community and that community. We must have a more objective way. One very legitimate component of that more objective way is traffic counts. Again, I wish it were not that way. I wish we had limitless funds to do
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them all, but we don't. Therefore, we must have a process, and I believe the processes that this ministry has in place are fair ones.
R. Neufeld: I appreciate that, and I am not saying that we should increase taxes or take something away from someone else, as when you talk about taking it out of health care or education. No, I am not specifically saying that -- but I would venture to say that the one budget you did not touch was Social Services; it has increased a billion dollars over two years.
There are reallocations of all kinds. There is a corporate capital tax that is now applied, and B.C. Hydro has two large dams in that area that funnel money back to the province. We can argue about this for a long time. What I'm saying is that it is unfortunate that what we do is to take criteria that are used for the lower mainland and apply them in the north. The traffic counts in Fort Nelson, for instance, did not change, but we put the lights in -- after the fact.
I'm not blaming that on any staff person or on people who work for the Ministry of Highways, because, to be quite honest, I'm quite happy with the people who work for the Ministry of Highways. Anyway, they do a good job in my constituency; those are the ones I can speak for. I have no problem with that. What I am saying is that we take rules and regulations that apply here and apply them there, and they don't quite fit the criteria. Then we go ahead and say that, because the traffic count isn't high enough, we are not going to build that road. That is all I'm saying.
Maybe there could be a reallocation of funds someplace to finish off a project that was obviously not started haphazardly by the ministry. I am sure they would not go into a $25 million program just because they thought they had to do something this year. It was something that had been planned for a long time. That hill didn't start sliding last year or the year before. It started sliding many years ago, and has been changed constantly. I have lived there for quite a few years. It would be nice if we could finish a $25 million project that had been planned for and started, and not put it off because, all of a sudden, the traffic count isn't up. The traffic count, I would suggest, is probably more today than it was when the project started. If not, it has probably been consistently the same.
Another issue in the north, in the Fort Nelson area, is Clarke Lake hill. I'm sure the minister is familiar with that. It is another hill that has been sliding quite a bit, and it goes out to Sierra and the Desan. There are two parts to the question. Is there any plan for doing some remedial work on that hill to keep it from sliding? Where are we at with resource road legislation, and when can we expect it, so that people who are in the oil patch northeast of Fort Nelson can relax a little with what has transpired in the last while? I appreciate that the Ministry of Highways is looking after the road out there, doing a good job and working with the Department of Mines there. So I appreciate that, but at some point I guess we have to get to where we have resource road legislation so that everyone can rest easy and know where they're going. Maybe you can explain that to me, please.
Hon. A. Charbonneau: With respect to the slide area that you mentioned, avoidance of that area would require a major realignment of the road. Apparently an alternative route was looked at, but it was on the same valley wall and, as you know, all the way through the north we've got unstable situations that can go, particularly if we get any change in groundwater. I hate to use a traffic count as the factor again, but if you consider the vehicle count on the Sierra-Desan Road, it just does not warrant a major investment in a complete reroute to try to get out of the sensitive area. We're not aware of any recent movements that have occurred in that hill. What we're faced with for the indefinite future is to maintain the road, to stabilize where it can be stabilized and repair where it is needed.
On the resource road legislation, there was simply no room on the legislative agenda this year. Consultations are still underway, and if we had had a chance to get it on this year, we probably could have completed consultations over the winter. But it became apparent fairly early on that the agenda was going to be too crowded. I'm hoping to see it on the agenda for the next legislative session, because it would be a good idea to try to bring some overall rationality to resource road standards and designs. So time permitting, it will be on next year's legislative agenda.
R. Neufeld: In that case, is there going to be no change in maintaining the road? Are you going to carry on with what's going on right now until the next fiscal year?
Hon. A. Charbonneau: Frankly, I would rather still see Energy and Mines directly responsible, but Treasury Board has put that responsibility on this ministry. We will carry out that responsibility and see to it that the road is suitably maintained this year.
R. Neufeld: The next issue -- highway signs on the right-of-way -- is one that you dealt with before, and there are some good points and some bad points to it. I agree with some of the process that you went through, but I have some peculiar areas further north -- from Fort Nelson, specifically, and even a couple between Fort St. John and Fort Nelson. Along the whole length of the Alaska Highway there are not very many real stopping places. In fact, once you get past probably mile 101, Blueberry, there are not many all the way to mile 600 at the Yukon border. The issue that comes up is: yes, you did take all the signs down -- at least you treated everyone equally -- but what happens again is that people in Fort St. John or Dawson Creek or even down here can still go to private landowners, rent land from them and put up signs to advertise their place of business. I appreciate that the minister made it possible for someone from the Peace River-Alaska Highway Tourist Association to sit on a committee to try to deal with some of these problems. The ministry has made some allowances for lodges along the highway to have signs in front of their businesses as long as they are 50 feet off the right-of-way. Previous to that, I believe it was 150 feet from the centreline; that's a 300-foot wide
[ Page 7305 ]
right-of-way. That helps the lodge owners a certain amount, but even though the generic signs are up, they would still like to advertise their business before you get to it. They can't do it on the right-of-way and there's no private land that they can even go to to make a deal with someone to put a sign up, because it's all owned by the Crown.
[5:15]
So they are in a difficult, catch-22 situation, if you can understand where some of them are coming from. Not all of them want a sign, but a good number do. I've had quite a few calls in the last while. They appreciate the 50-feet-off-the-centreline rule, but they would rather be able to have their own advertising and their own signs, kept to a standard 50 feet from the centreline but at each end of their business -- at least at each side of their driveway. Some of them are in areas where the roads are twisty and narrow, and they say that by the time tourists come around the corner and see the business, they just keep going. They don't have a chance to really go in there. Whether that is really affecting their businesses or not, I'm not sure, but that's what the business people are telling me. I wonder if there is any way the minister could look seriously at that issue. If there was a standard that these people had to have their sign up to.... There is no private land they can lease to put a sign up, so maybe the minister could look seriously at allowing those people to erect signs before their businesses, coming from either way. Most of them are operational for only a short period during the summer. A lot of them close up; some of them don't. But quite a few of them operate for four months or five months a year at the maximum. So they need to capture as much business as they can, as you can appreciate. They find themselves in that position. I wonder if the minister could tell me how he feels about that.
Hon. A. Charbonneau: Well, as you've mentioned, a sign committee has been struck to deal with that. They've had one working session and are in the process of pulling thoughts together, submitting a draft policy and having another go-around on it before they come back to me with their formal recommendations.
I could live with a recommendation that may treat one region of the province differently from another. It's one thing for businesses to advertise along the right-of-way in the heart of the Okanagan, where there are hundreds or thousands of businesses. I think virtually everybody will agree immediately that that's not acceptable. In the north, where perhaps there are hundreds of kilometres between communities, the occasional sign to read might be looked forward to, and it certainly wouldn't cause very much of a hazard.
The situation I find myself in with the way the policy is now is that if I grant exemptions to somebody here, somebody from the Okanagan or from the mid-Island says: "You let them do it up there. Why can't we do it here?" I hope the sign committee and people who are involved in the industry -- the BCAA, tourism associations, bed-and-breakfast associations, and many associations representing almost all facets of the sign problem -- are going to be able to hammer out among themselves a policy that we will both find acceptable. That being the case, I'll adopt it as policy. Then, if through that policy and after this public process we are able to allow some variance from part to part, at least I have firm ground to stand on when informing other communities and businesses why they can't do something. But with respect to the instances that you have mentioned, I can quite see that it's a reasonable request, and I hope that the new policy will accommodate it.
R. Neufeld: I can almost see some of the problem coming, with the committee trying to differentiate between the north and the south and what kinds of recommendations they're going to come up with, because from what I understand from their initial meeting, the same adage is there that has always been there -- "If they're going to have it up there, we should have it down here" -- and they're not taking into consideration some of the differences in country and terrain. There are at times hundreds of kilometres between places, and it's a pretty lonesome piece of road. Those people would really appreciate the minister's help in fitting the rule for them a little more, because it is not a hazard to anyone -- I agree with the minister. Certainly, if you had a standard, I'm sure the ones who are serious about it would put their signs up to a certain standard and maintain them to that, and if not, they would be taken down. So I'll work with the committee a little more and see what I can do.
One last question I have about the Alaska Highway is on mile 83 north, which is maintained by the federal government, of course. Are there negotiations going on now with the federal government and the province about taking over maintenance of the highway, specifically from mile 83 to Fort Nelson? Is there any pressure being asserted by the federal government to turn that over to us? It will be a tremendous cost to the Ministry of Highways if and when it does happen.
Hon. A. Charbonneau: The federal government has developed quite a level of expertise in off-loading over the past decade. I'm going to be very careful that they do not sucker us, with respect to off-loading on us the ongoing maintenance and operation costs.
At one point, when the national highway policy was being discussed, the federal government proposed to upgrade some roads in the national parks and the Alaska Highway and then turn them over to us. We never got to the point of actually dotting the i's and crossing the t's and putting some of the provincial demands on the table. We might have been interested in that if there was an ongoing commitment from the feds, through a tax point or whatever was necessary, to transfer to the province the amount of money that the future maintenance and operation would entail. Unfortunately, we never got to that point; the feds broke off the negotiations. We are not at present under any pressure from them, although it is my understanding they still intend, in their strategic highway improvements plan, to spend some federal dollars on both parks highways and the Alaska Highway. But they're doing it on their own hook entirely.
[ Page 7306 ]
R. Neufeld: I have one last question about the movement of 16-wide mobile homes. Maybe the minister could just quickly relate to me his feelings on it. I know that the Attorney General's ministry plays a role in this. I have a copy of a letter from the minister wherein he has no problem with the movement of 16-wide mobile homes in certain areas of British Columbia. Maybe the minister could just reiterate that feeling, and how he feels about that right now.
Hon. A. Charbonneau: From a straight technical point of view, on a limited mileage of our highway system, one physically could move 16-wides. However, on the motor vehicle and safety side -- which belongs of course to the Attorney General -- it was the view of the motor vehicle branch that it was not safe and would lead to requests or a pressure to allow 16-foot-wide moves elsewhere in the province, and that would certainly not be safe. So for a variety of reasons, the motor vehicle branch and the Attorney General ruled that they would not allow the movement of 16-foot-wide mobile homes.
D. Symons: I would like to go back to a few questions the hon. member for Peace River North asked regarding signs, because that is a question I had coming up later on.
I had some concerns expressed to me about the signage along the road. One fellow was calling because he was a real estate salesman and he was putting these open-house signs along the road, and they were disappearing. I phoned the local district office because I thought this was just some overzealous Highways employee who had read the directive and misinterpreted it to mean absolutely everything, and really, these signs would not be included. Much to my surprise, I found out that the interpretation indeed seemed to be that even those signs, plus bed-and-breakfast outfits and all the rest, were included. I do hope the ministry will take a look through its committee now, and be a little less rigid and a little more commonsensical with regard to maintaining the intent of the policy, which I believe is good, but allowing some flexibility in its interpretation.
I will skip back to the question I asked on ATAP. While the other member was asking questions, I was looking along the transportation policy and planning lines in the estimates book, and I am still not quite sure under which STOB number that might come. I tried to figure where it would be, because certainly, if it's under some of the larger numbers there -- base salaries and so forth -- then none of it is getting into actual airport-building. Under which STOB number would the majority of that $500,000 appear so that it would actually end up in airport improvements?
Hon. A. Charbonneau: You are having difficulty finding the appropriate number because I misdirected you. There are two items under transportation, policy planning and municipal programs, and I said that it was under transportation policies. It's not. It is one line down, under municipal contributions. It is included in that under STOB 82.
D. Symons: Thank you for that correction, because I was having a lot of problems -- very little under the line you had given me seemed to cover the amount of money that was involved there.
Time is going and I do have a problem here, because there had been some pressure.... I have about an hour or an hour and a half more of questions to go. I would hope that we could adjourn at the appropriate time and everybody go for dinner, then come back and finish off or finish another day, but that will be somebody else's decision. So I'll leave that up to you to decide in the next few minutes as to what sort of motion you may make.
Also, could I have a copy of the province's air transport policy or philosophy, and the guidelines that ATAP uses for giving grants? That's just a request. There is a slight increase in funding, but it is still only about 10 percent of the funding that was given by the previous government. I'm wondering which projects are budgeted for in that $500,000. Where is it going in this budget year?
Hon. A. Charbonneau: First, the hon. member can obtain a handout leaflet on the ATAP which gives the guidelines. The program this year is taken up with a single contribution to the Port Alberni airport.
D. Symons: Yes, I read in Sunday's paper that the Port Alberni project is going ahead. It says that federal and provincial governments chipped in $500,000 each. Okay, that takes care of the full amount -- an airport.
It's unfortunate, because Revelstoke airport really needs some upgrading of its navigational instruments. The approach between the mountains needs some more lights and equipment there. There are a number of community airports with good potential for air carrier services that are in need of assistance. I think helipads are a low-cost, realistic alternative for many communities, which would give them a commercial, industrial or even an emergency function there. So I guess we'll have to put off those projects until the future.
[5:30]
While we are covering ATAP very quickly, I was concerned to see that funding has been cut off for the B.C. Aviation Council. I believe they did perform some necessary functions, and they seem to get a good number of calls. I had the number down here, and I can't find it right now. The minister called the council in Victoria and announced that funding would be eliminated completely for this fiscal year. I'm just wondering if the minister can tell us the possible reasons -- other than shortage of money -- he had for eliminating this grant to the council without any notice or consultation with them.
Hon. A. Charbonneau: I believe that the council does a good service for the industry, and I applaud and encourage them in their activities. However, I felt that an organization of this sort could easily -- perhaps easily is not the right word -- raise the funds that they require for their activities from their membership. They were given notice, by the way, a couple of years back that the provincial funding would
[ Page 7307 ]
be reduced and then eliminated. We encouraged them to undertake other activities in order to replace that revenue. I understand that they have been busy recruiting new members, that their revenue is in fact up a bit from last year and that they are carrying along quite fine.
I move that the committee rise, report progress and ask leave to sit again.
Motion approved.
The Committee rose at 5:32 p.m.
The Committee met at 6:12 p.m.
[H. Giesbrecht in the chair.]
ESTIMATES: MINISTRY OF TRANSPORTATION AND HIGHWAYS
(continued)
On vote 58: minister's office, $410,000 (continued).
J. Tyabji: I want to ask some questions, specifically about Okanagan Lake Bridge, the study that recently came out and the three recommendations in that study. Has there been any assessment, because I haven't seen any, of a potential southern bypass and a southern route for the second bridge? What is the follow-up to that study? Other than the consultation that was outlined in the news release, what is the ministry planning to do as a result of that?
Hon. A. Charbonneau: As the member knows, the study was done and the three alternatives were brought forward. This year it is intended to expend about $200,000 -- I could obtain a more accurate figure for you -- to do what's called a condition report on the bridge. We will go back in and do a more detailed analysis of what's there.
There has been no study of an alternative. I have had informal discussions with the mayor of Kelowna, and the idea of the alternative of an almost diagonal crossing was discussed. It was pointed out that on the land side that would entail a lot of new highway, connecting back over to 97, and hence would be a very expensive undertaking. As the member knows, any improvement of the bridge in its existing location is not highly desirable either, because it just delivers a larger volume of traffic into an already congested area.
[6:15]
Further alternatives that have been put forward include the Westside Road or even a continuation of the Coquihalla connectors to go up and around Kelowna altogether. It's an exceedingly difficult problem, and whatever the solution is, it's going to be very expensive. But at the present time there is just the intention to do the condition report on the bridge.
J. Tyabji: In looking at the Okanagan, and the fact that we now have 120,000 people in the central Okanagan, basically in the greater Kelowna area, it seems to me that.... Penticton and Vernon are growing; all three centres are growing together. If the minister is aware of the layout of the land, he'll know that there's a lot of room for development to the south and east of Kelowna. There's a large area there that is currently primarily undeveloped. I believe it was Larry Foster in the city hall staff who developed a plan some years ago in conjunction with the ministry. Although I'm not sure of the details, the proposal was basically to have a second bridge from the west side come across slightly north of Okanagan Mountain Park, then to have a semicircular road bypass south-southeast to cross Gallagher's canyon on a small bridge, and thereby have a separate route that bypasses the city almost entirely.
If one had a 20-to-25-year plan for the city, I think that would allow for a very different focus. The biggest problem that exists right now, from my perspective.... When I saw the results of the preliminary study that came out a couple of weeks ago, the first thing I noticed was that all three options didn't address the problem of the bottleneck and the traffic. Even the alternative that is currently favoured by the city of a second bridge slightly to the north will funnel most of the traffic through the same place. The Highway 33 extension that the city would like to do, which would go slightly north of Highway 97 and extend to where the second bridge would be located, is still going to end up with the majority of traffic heading through a very congested area, and there isn't a second route. That might be all right if the population didn't change. But considering the growth we've had and what we're expecting and the fact that that route is central to the entire valley, which is probably going to hit a population of about 300,000 soon, and when you look at places like the Shuswap and the south Okanagan as areas that people pass through Kelowna to get to, my recommendation is -- and I'd like to see if there are some thoughts on this in the ministry -- that there be a 20-to-25-year plan, recognizing that the solution will be expensive. But if there's planning in place now, even if the bridge isn't constructed for awhile, you would see the development of the city change to have that south-southeast roadway begun in the municipal and regional planning. That might alleviate some of the costs if the Ministry of Highways had to do the entire project on its own. Is there any discussion of that? I understand that the $200,000 is going to deal with the existing bridge, but to me the real problem is where the second route is going to go. How is that going to happen? Who's thinking of it?
Hon. A. Charbonneau: The member may be aware of the land use study going on in the lower mainland, Transport 2021. A transportation study on the Capital Regional District is occurring. A suggestion has been made that it would be appropriate to have a land use study done of the whole Okanagan. Transportation would be a component of that, the same as transportation is a component of the Transport 2021 land use study. I would personally support that, because I think the future development of communities in the Okanagan would be reshaped by a new approach to transportation. That has been broached with mayors and the chairs of the regional districts in the Okanagan.
[ Page 7308 ]
Nothing has occurred up to this point, in terms of concrete planning for it. The cost of a new bridge, a new landing point and new road leading past Gallagher's canyon and connecting in with 97 at a point further south could easily be in the $200 million range. It's a very large project.
I think before the province would want to commit funds of that magnitude, there should be an Okanagan land use study. I know that many of the businesses in Kelowna resist the notion of developing Westside Road, for example. But in other communities elsewhere in the country and the continent, the construction of bypass routes to allow that traffic to be taken off their main street is sometimes the best thing that can happen to a community. I'm not going to presume that that would be the case for Kelowna, because at this point we don't know. So I would support a land use study with transportation as a major component of it, and then let us see where that public process takes us.
J. Tyabji: With regard to the reference to businesses sometimes being upset about a potential bypass, I think the difference in Kelowna is that right now the population is growing exponentially throughout the valley, not just in Kelowna, and the market consequently is developing at the same time. If there were an alternative route -- and I don't even consider it a bypass -- what would happen is that wherever the infrastructure was set up.... If that grid were mapped out, you would get the municipal government building their roadways in that system; and you would get development of commercial sites along that route that would be in conjunction with the population gravitating there. So it wouldn't be in competition with the existing businesses; it would actually be a different structure -- and that's what is needed. I've lived there since 1973, and at that time there were about 22,000 or 23,000 people. Now there's 120,000 just in the greater Kelowna area, and when you take into account the south and the north and then the outlying areas, you're looking at a population base that will easily rival the Capital Regional District very shortly.
If that second route is developed, you would see the pressure on the existing system ease dramatically. That in itself would probably help out with some of the problems that exist with regard to air quality. When you talk about a land use decision, one of the problems is that the majority of the traffic is concentrated at the place where the air inversion has the highest impact and the traffic is so slow that you get the buildup of the emissions. If you had the alternative route, de facto the traffic would be moving faster, and that southern route is not as prone to the inversion as the central part of town. So I would very much encourage the minister to pursue some kind of land use study that would recognize where that area is going in the future.
Just to finish off, the Beaverdell area and heading down to Grand Forks is an area where there has been more and more traffic in the last few years. The second route as proposed -- the south-southeast one, which would connect up roughly in Black Mountain and then head north out to the airport -- would also help people who are heading west to east to get there in a more direct way. I don't think that would take away from the downtown core, because Kelowna is a destination point. It would be a much easier route for those people who are passing through, and I think it would help the provincial structure for transportation.
In terms of where the Ministry of Highways is going after that bridge study, I think that if the scope is broadened, and even if the time frame is brought forward, the cost of the project may end up going down because the infrastructure will be put in place by the people who are developing the commercial areas in conjunction with the municipality. There is a lot of development going on right now, and if anyone knew that there was going to be a south-southeast connector there, I'm sure you'd get a natural gravitation toward that, because it's time for a second centre in Kelowna -- being, of course, the hub of the Okanagan.
Hon. A. Charbonneau: I can't disagree with much of that, but again, I think that until we stand back and, in conjunction with all of the municipalities and regional districts of the valley, look at what land use should be 20 and 30 years down the line, and then make choices, as they are doing in the lower mainland, between diffuse and nodal development, and decide where the nodes should go -- if it is going to be the equivalent compact urban model.... Once those decisions are made, the necessary transportation routes will fall into place and one feeds on the other, I agree -- although I think that the first step would be to get some sort of regional land use study underway.
J. Tyabji: Perhaps the minister could assist me. How is that initiated? Does the minister initiate it or is it in consultation with the regional districts?
Hon. A. Charbonneau: To some degree, the process has been initiated already. I said earlier that on a number of occasions I've spoken with mayors or regional district chairs. I did so at the recent Okanagan Mainline Municipalities Association meeting in Revelstoke and I have done so in individual meetings. Subsequently the three regional districts have held meetings with the ministry. I would suggest, however, that we need to take this one step further, because it should not just be a transportation study. It should be broader. So it might well be that Environment, Agriculture and certainly Municipal Affairs and some other ministries would like to play a role in this. Because one of the chief driving factors happens to be transportation, I'll take it upon myself to discuss this with other ministers whom I think might be interested, as we have in the instance of the GVRD -- it's a GVRD study with ministry support; it's about fifty-fifty. And then if the municipalities and the regional districts of the Okanagan are interested -- and I believe they are they could probably initiate a program with some funding support from the provincial government.
J. Tyabji: I want to thank the minister for that commitment. Please keep me posted as to any progress made or any communication. If there is anything that I
[ Page 7309 ]
can do as one of the local MLAs, I'd be happy to help out.
D. Symons: I'd like to revisit ATAP for a moment and I am going to try, through the B.C. Aviation Council, to condense three pages down to one. I believe that they were expecting a grant of $40,000 this year; I'll just mention that figure now. They indicate that they get over 4,000 telephone calls a year asking for information regarding airport facilities. They also believe they had a commitment from the ministry prior to the last provincial election for help in commencing to produce an air facilities map. Since the change of government, the ministry has cancelled that. But they have committed around $14,000 to the pre-production costs of that map and would like the ministry to reimburse them on that. All this builds up to the fact that considering there are that number of calls for map facilities and so forth, the ministry is basically telling the world, by cutting out the funding, that B.C. doesn't really care about its air tourists. They figure that air tourists are a fairly well-to-do type that we should be encouraging into the province.
Hon. A. Charbonneau: To some substantial degree, the calls the council receives are from their own members. They are servicing the needs of their own membership. We did reduce the funding, as I've said; we have pinched it right down to zero. It might not have been what the council expected, although they were given warning last year that they should anticipate that this could happen. It is my understanding that in fact they are doing all right, in that they have picked up additional memberships and the revenues from that.
With respect to the expenses that they incurred in their mapping project, it was my understanding that we reimbursed them. There was seed funding provided to them to do that work.
[6:30]
Also, and I guess it is important, the smaller community airports are a tourism matter and not, in the broader sense, a transportation matter. Most of the communities that want to see improvements want them because the facility that they would like to build or improve would enable them to draw in tourism dollars -- and that is legitimate enough. But it was a transportation expenditure in a period of fiscal hard times, and when I had to look for cuts where I could find them, this was one that just had to give.
D. Symons: I would like to move to ports. I know ports is primarily a federal jurisdiction, but last year during estimates the minister indicated that the province is trying to obtain control of ports. The minister said, and I quote from Hansard, May 1, 1992, page 1177: "I believe that we know how to develop and run those ports every bit as well as Ottawa -- or better." I'm wondering if the minister could tell me, assuming the province did gain jurisdiction, exactly what changes would be made or where we could do better -- maybe just an example or two rather than the whole outline of it.
Hon. A. Charbonneau: I don't know that estimates is the place to get into a long dissertation on that.
First, I will report that, although the matter of control of ports was raised in the constitutional talks, the necessary support of seven provinces was not obtained, and hence, it fell off the table. I do believe that the citizens, the companies and the government of British Columbia understand the needs of the province better than the mandarins in Ottawa do. At the present time, for example, the port of Vancouver pays to Ottawa about $30 million a year in dividends. Keep in mind that I mentioned earlier that Ottawa also draws out of B.C. about $500 million a year in the fuel excise tax. Rather than put money back into the ports element of our transportation system, they draw further amounts of money out -- $30 million a year.
If you look south of the border to Seattle-Tacoma, they draw in about $30 million a year to support port activity through taxation policies granted to them, so it is not too surprising that they have leapfrogged us in some respects. They have port facilities and refrigeration facilities that we don't have, and they are drawing away transportation business from western Canada. They're drawing it away from our system, costing us jobs and costing us revenue. I'm not completely confident that Ottawa has a real handle on what's happening. When I said that we could probably take care of our ports better than Ottawa can, I meant it, but at least in the foreseeable future it's not likely to happen. I don't see Ottawa giving up the jurisdiction.
D. Symons: I would tend to agree with the minister's observation. Ottawa will give it up only if it's going to cost them something rather than earn them something, I suspect. That seems to be quite common for governments nowadays. I wonder if you might tell me which port developments the provincial government is currently involved in, either on its own or in conjunction with Ottawa. Along with this, does the province supply any funding to the federal small craft harbours program, or is that strictly federal funding?
Hon. A. Charbonneau: We don't contribute at all to the small craft harbours program; that's strictly a federal program.
At the present time the province is not developing any ports. We have proposed to the federal Transport minister that the status of Victoria harbour should change. At one point in time it was a commercial harbour oriented toward industry. It is no longer that and it is unlikely to ever revert to that. The province has fair landholdings around the harbour and the federal government has sizable landholdings. We think that there is an opportunity to create something quite new and different there; something that will be called a port corporation, which the cities of Esquimalt and Victoria and the provincial government and Ottawa might participate in. Up to this time the federal government has not shown a liking for that, although it is not completely off the table. We subsequently proposed that if they wouldn't go for that, they could at least go for a harbour commission, which would give some
[ Page 7310 ]
larger element of control to the municipalities and the province. But we have made that offer conditional on the province having a meaningful say in the operation of that commission. Thus far the feds have not replied to that.
Besides that, indirectly, B.C. Rail has acquired Vancouver Wharves and that aspect of a port operation. B.C. Rail continues to be interested in the development of a deep-water port up at Squamish.
D. Symons: I have one last question on ports -- and just a nod would tell me the answer -- and then we could move on. Is the proposed port at Kitimat strictly a federal matter, or is the province involved? If you nod yes, I will go on to the next question; no, I will listen to the answer.
Hon. A. Charbonneau: To the best of my knowledge, a port at Kitimat is a dead issue, but had it continued it would have been a federal port.
D. Symons: A change in tack here. What studies are done prior to and what monitoring is done during highway construction, as far as an environmental assessment goes? How does your ministry work with the Ministry of Environment to make sure that highway construction is environmentally safe?
Hon. A. Charbonneau: I will start off by mentioning the kudo that the ministry received from the Association of Professional Engineers by winning that association's environmental award this year. So I guess we do not too bad a job.
We consult on an ongoing basis on our projects with Environment. Through the public consultation process, we deal with every environmental issue that arises. We have an environmental branch in the ministry that looks into and advises on designs and various matters relating to -- or to mitigate or minimize -- environmental impact. Beyond that, as projects demand, we would be interacting with federal and, I presume, also international salmon commissions in their areas of jurisdiction. As the member would know, environmental assessment legislation was introduced in the House recently. Under that, a major transportation project would be subject to that environmental assessment and review as well.
D. Symons: I'd love to get into that particular legislation, but (1) it's legislation before the House, and (2) I don't want to take the rest of your meeting time here.
Commercial traffic. We're dealing with more volume, with larger and heavier vehicles, and now the advent of long combination vehicles, of which we saw a result just recently on the Oak Street Bridge -- one of these vehicles going wrong and a serious accident happening there. These all take their toll on the highway surface, more so than passenger vehicles. What coordination takes place between the Ministry of Transportation and Highways and the Ministry of Attorney General to control what goes on the highways, to regulate commercial vehicle traffic? The minister has talked of carrot-and-stick incentives and disincentives to discourage automobile use. What carrot-and-stick approaches does he have in mind to encourage a more efficient and infrastructure-friendly trucking industry?
Hon. A. Charbonneau: The standards for axle loading on commercial vehicles have possibly decreased over the past ten or 12 years, so we're not seeing a dramatic year-to-year increase in the loads on the highway. We are seeing that with more axles we get more cycles of loading, and with more trucks we're obviously getting a greater loading.
Just to make a minor correction in passing, the incident that occurred on the Oak Street Bridge was not a long combination vehicle; it was a truck with a pup. The long combination vehicles have, in addition to the truck unit, two additional independent trailers. At present they're not legal on B.C. highways. The trucking association is pressing us to allow testing, and I'm resisting that. We have a lot of congestion as is. Not a lot of our roads are designed to permit that. Plus, in almost all of the province, we have highly hazardous winter driving conditions that I would not want to see made worse through the introduction of long combination vehicles onto our highways.
[6:45]
With respect to the standards, they are set nationally in an effort to determine dimensions and weights of vehicles, as we move toward standard regulations from province to province.
D. Symons: In that regard, I believe logging trucks can get a permit to be overloaded, and I'm wondering.... Again, that seems to be a situation that can cause problems on the highways, for safety and also just the effect on the infrastructure. If we just go back to your weight on the axle, maybe that's reduced; but I would think that with some of these vehicles having more axles -- three rather than two and so forth -- much more rapid movement of a fairly heavy vehicle would have a more damaging effect than the same number of automobile axles going across. Because of the speed with which the axles pass a given point, would this not set up a ripple effect in the asphalt and help this deterioration along much faster than, say, a goodly number of cars?
Hon. A. Charbonneau: The major problem related to commercial vehicles is just the weight and the torque applied to the road in stopping or starting the vehicle or lugging uphill or braking downhill. In addition to the weight of the tire, you get a thrust on the tire, and that's why you will see -- sometimes in a disturbingly short period of time after an intersection is reconstructed -- some roughing in the intersection. In fact, typically, driving along a highway where there are intersections, you will always notice that the quality of the asphalt is poorest right near the intersection, and that's due to the accelerating and decelerating forces on the truck wheels.
With respect to the so-called restricted route permits for logging trucks, my understanding is that they came into place in the first place because out in the bush they
[ Page 7311 ]
did not know axle or total weights very accurately; and the logging trucks could pick up substantial weight in ice, snow, dirt or gravel coming up on the load, so by the time they got onto the highway they might have been above legal limit and then subject to fines. On the other hand, they don't want to carry one log fewer than they possibly can for financial reasons. So they were given an amount of leeway -- 10 percent or something -- but generally speaking, I would like to see that eliminated. I am told that now there are ways and means of determining the actual loads quite accurately -- even back out in the bush. In any event, whenever they get to where they are going, there is a scale that weighs them quite accurately.
In my view, we should be trying to keep to the load limits that we have. A single overloaded logging or commercial truck could probably do as much damage to the road as the next 5,000 cars. The overwhelming amount of damage to our roads, bridges and other structures is due to commercial vehicle traffic. Overloads don't help that at all.
D. Symons: The figure I was given was 16,000 automobiles compared to one overloaded truck of large magnitude.
Moving to the area of privatization and maintenance, your ministry has a study that I gather is an ongoing one during the current contracts. How much is budgeted for the study, and who will be conducting it? My concern here is that I've noticed that both the Premier and the person, who was the Highways critic when you were the opposition were both against privatization. This indicates to me that we really need an independent impartial evaluation group making this study.
Hon. A. Charbonneau: We will have an independent review. It's just getting underway, and I'm many months late in getting it underway for a whole variety of reasons I won't go into here. I have said publicly on many occasions that I don't know whether or not privatization has saved anything. This review will go some way toward determining that. In addition, the review will determine whether or not the job is being done, and whether or not the employees of the contracting firms are being treated fairly. It will be done in as unbiased a fashion as I can do it.
D. Symons: What is the budget for this year for that study?
Hon. A. Charbonneau: At this point in time I have not called out a budget. Some numbers are being worked up, but I have yet to approve them.
D. Symons: I guess this is a futuristic question, but I notice that the government insists on union succession rights when a company folds or changes hands. I wonder if the government would give the private contractors the same sort of protection and commit to buy back the contractors' equipment at a fair market value in the event that maintenance reverts back to the ministry as a ministry operation.
Hon. A. Charbonneau: In the midst of all this, I think I've lost the first part of your question. The second part had to do with what we will do if we take back the work, and I don't want to get into that issue. We'll see what the results of the review are first, and then we will address that issue.
Would you remind me of the first part of that question?
D. Symons: The first part was just a prelude to the second part. You have answered it now.
The next question deals with contract versus day labour. Can the minister describe the policy in determining whether work is to be done by contract or by day labour? There seems to be some confusion and uncertainty as to whether there is a change in the philosophy on this issue. Is there a cap on the day labour?
Hon. A. Charbonneau: There are no hard-and-fast rules with respect to this. If we have a situation where in-house staff can do a design -- and generally speaking, it's smaller amounts; maybe $200,000 and below -- we might contemplate going the day labour route. We're going to consider things like putting a day labour contract out into a community and allowing local personnel and equipment to be drawn off our revolving lists of day labour in order to give some work to communities. If it's a larger project, the chances are that the major elements of the project are going to be engineered, in a detail sense, and let out by contract. But even in the major projects there may be some smaller elements that we might do by day labour or encourage a contractor to hire in some day labour to do.
Generally, if we're going to do an engineered product, it's going to go out by contract. If we are going to be able to put people in the field, give direction, build and design it almost as we go, or if the elements of design are not critical, then we may do it by day labour.
D. Symons: I think that clears it up, in my mind at least.
If we can move on to the tendering process, is the ministry policy to consistently award contracts to the lowest bidder, or are there other criteria involved? Also, considering that there is a statutory authority to grant contracts to the lowest bidder, and that this may only be circumvented in the event of approval by order-in-council, under what circumstances would this be undertaken? Have there been any instances of this in the last 12 months in this ministry?
Hon. A. Charbonneau: We have not rejected any low bids since I have been the minister.
However, with respect to the maintenance contracts, we do not go strictly by low bid. We look at the business plan of the bidder and the relations that they could have with their staff, as expressed partly through their business plan, and evaluate their capacity to do the work. The combination of those factors -- with price being a major factor -- is used in determining the winner of the maintenance contract. As a result of that,
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on quite a number -- 28 -- of our maintenance contracts, the low bidder did not get the work.
D. Symons: What prompted the question was that in April it was ruled that a contract for culverts on the Island Highway was not given to the lowest bidder, even though statutory authority clearly dictated it should be. The judge in the case found that according to the tender, no preference was given to the type of materials used in the project. That was the tender material given to the bidders. Clearly the contract had been awarded on that basis. The problem here is: who is ultimately responsible for awarding contracts? Is it the project manager, or is his work overseen by some other individual? Why did this not go to the lowest bidder when they chose a particular type of culvert?
Hon. A. Charbonneau: The contract that you're making reference to was let by the previous government. I don't wish to comment further on it at this time, because the court decision has been appealed.
D. Symons: I don't know if the last portion of my question would be under appeal, but it was about where the ultimate responsibility for awarding contracts might lie.
If we could move on to the next topic, then, as our time is rapidly running out.... If the government believes in its fair wage policy and insists that contractors adhere to its guidelines to secure government contracts, why doesn't it apply to the Ministry of Highways, to highway and bridge construction? I'm not advocating that it does apply to these projects -- in fact, quite the opposite; I don't believe it should apply anywhere. What I'm questioning is the inconsistency on the part of this government. They seem to have this one exception to their fair wage policy.
Hon. A. Charbonneau: That is a matter better raised in the estimates of the Minister of Labour.
D. Symons: It's fortunate that the estimates of the Minister of Labour have gone past -- unfortunately.
In the annual report for the last fiscal year for which one has been filed, mention is made of the creation of a construction engineering branch, which will apparently be in operation by this summer. What need is this branch going to serve, now that the responsibility for construction will be within the purview of this Transportation Financing Authority? Is it serving something that is not going to be covered by the Transportation Financing Authority? Was there any thought given to contracting out these services, or was a lack of available contractors one of the contributing factors in the creation of this new branch?
[7:00]
Hon. A. Charbonneau: The branch that you referred to is up and running, but it deals with matters of policy and contracts in construction. It's not involved directly in construction. In any event, with the Transportation Financing Authority coming on the scene, it will be responsible for planning and financing. But the other elements of transportation that the ministry is currently responsible for -- the design, the construction -- will remain responsibilities of the ministry.
D. Symons: How large is the branch, and will there be any opportunities for the branch to use its services outside of the provincial government? Specifically, would it be possible to contract its services out to municipalities which otherwise might not have access to this type of cost estimation?
Hon. A. Charbonneau: It may be that the member misunderstands the purpose of the branch. The branch is designed to give services to the ministry in terms of evolving policy, insurance matters in construction, contract language and dispute resolution in contracts -- all that sort of thing. It is a service agency to the ministry, and there would be no intention whatsoever of having it contract services out -- although we could probably take over several other provinces and the federal government, and do a fine job of it.
D. Symons: The minister, through the Transportation Financing Authority, has talked about tolls and gasoline levies as dedicated funds. Will the minister commit the government to the policy that tolls and like charges will be dedicated to a specific project, and that when the capital costs are recovered, the tolls will come off that particular project? For example, will tolls on the new Lions Gate Bridge structure be used to pay the capital costs of the Lions Gate Bridge only?
Hon. A. Charbonneau: First, some of the decisions will likely be the responsibility of the Minister of Finance, or sometimes the Minister of Finance in consultation with the Minister of Transportation. Second, there is nothing I can say here today that would bind the actions of some future government or minister as to whether they would or would not extend tolls. Third, I would point out that after the work on the structure itself is paid for, there may well be other improvements to the transportation system leading up to that structure or away from it. Things that come to mind include transit improvements -- for example, HOV lanes, transit queue-jumping lanes and special busways coming up to the bridges. It might well be that if there is a dedicated source of revenue coming into the Transportation Financing Authority, there could well be efficient uses for the funds that would further increase the overall efficiency of the system.
D. Symons: I realize what you are saying. My concern is more that if we could project ourselves 20 years into the future, the Lions Gate Bridge will have been built and the loonie tolls as you go across will have paid for the bridge and maybe even paid for these other ancillary accoutrements that you mentioned, but that after all that is taken care of, the money is not being used to finally complete the Beatton River road in the
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north of the province. When I say "dedicated," I wonder whether people in the lower mainland will be, through tolls, because it is easier to toll bridges down here and there is much greater traffic usage, helping to pay for projects outside the lower mainland. Is there some commitment, at least in the minds of those in the Transportation Financing Authority as it is designed now, that it won't be doing that? You say that future governments might change it, but what is in the mind of this government?
Hon. A. Charbonneau: In the mind of this government, what we want is dedicated funding from user-pay revenue sources that will go to the improvement of the transportation system for all British Columbians. I think the tolls should be calculated primarily in terms of amortizing the debt for a structure over a reasonable period -- perhaps 30 years. But if there is a limited excess of revenue, I think the Transportation Financing Authority should look to applying those revenues to associated transportation facilities for the betterment of all.
D. Symons: I don't know if I am totally satisfied with that answer, because I thought that general revenue was currently paying for the betterment of all, and that maybe these tolls and other charges were for specific projects rather than provincewide ones.
The last topic -- or very close to it -- deals with gravel size, which I brought up a year ago. I asked about this, and I guess the term I used was not sand but rather gravel. You replied that there would be a study done. How close are you to releasing the findings of that study? Just before you answer that, I have some findings: windshield damage claims to ICBC in Cranbrook, Trail and Nelson for 1992. The total of claims in those three areas was 16,226. The total amount paid out for those claims was $4,111,035. These figures do not include the deductible or any other damage to the vehicle such as lights or paint, so it's a horrendous cost to the drivers of this province and to ICBC. Alberta still uses sand. Is it not time British Columbia returned to using it also?
Hon. A. Charbonneau: The report is in the ministry now. It will be in my hands within a couple of weeks, and I'll move it along within a month or so after that. The cost of damaged windshields and paint chips is quite significant. That, of course, is why we did the study: to get a better handle on it.
But what you're not seeing is the avoided damages. For each time gravel has dug in and stopped a car from going over the edge, going into a head-on collision or losing control, tremendous costs, injuries and deaths have been avoided. What we don't know as we stand here is the total of the avoided costs. I would speculate that we have avoided costs many times that of the windshield costs we've experienced. That is, of course, nothing but a guess on my part, with no way of proving the statement. We have to use a larger road aggregate than Alberta does. Much of Alberta is pretty level and flat. We've got circumstances here where our snowfall can accumulate at a tremendous rate. We've got much steeper and longer hills and more difficult alignments or curves. We need a larger aggregate than the prairie provinces do.
[D. Lovick in the chair.]
D. Symons: Well, I have only one problem, and that is the minister's famous comment in Kamloops regarding circling Vancouver with tollbooths. I assume that the minister wasn't even floating a trial balloon on that but simply expressing a general idea -- not something he really had in mind. Could he just satisfy my mind that it was indeed a bit of hyperbole and not his intention?
Hon. A. Charbonneau: In looking at the city of Vancouver and the major transportation structures around the city, I would see those structures being significantly enhanced as time goes by. We need to add lanes to the Lions Gate Bridge and the Second Narrows Bridge. The Pitt River Bridge needs to be constructed. We need to complete the Alex Fraser Bridge. We need to twin the Port Mann Bridge. We need to augment the capacity of the tunnels. As work is done and substantial capacity is added or new infrastructures built, my proposal is that we should be using a user-pay principle to finance them and to pay down the debt. If that results in toll structures around much of Vancouver ten, 12 or 15 years in the future, I think that probably the citizens of the lower mainland will be applauding, because they will have avoided stupendous congestion. They will have avoided the toll of all that personal time lost. They will have avoided or decreased the toll of the environmental consequences of all these traffic jams. They will have freed up commercial transportation, which decreases the price of goods to all of us and decreases the price of our commodities that we wish to sell on the world market. All those things can come from substantial improvement of the infrastructure system. And if that requires tolls, which I believe it does -- and I believe I have heard the member allow that it would be a wise thing to do, as well -- then Vancouver could indeed have toll structures in many locations. Frankly, I think it would be a good idea.
D. Symons: I have a last comment on that. I have indicated that I'm not totally against tolls, but I think the minister, if he looks back, will find that I said "with limitations," and particularly that there are alternative routes available.
My one concern with your reply fits with a question I asked earlier with regard to whether tolls in this area might be used to finance projects elsewhere. What I can see, basically, is that because of the large traffic volumes in the lower mainland, the lower mainland area could indeed be financing all highway projects throughout the province. That would be an unfair tax on people in the lower mainland.
Hon. A. Charbonneau: That would not be the intention. The levy on the fuel tax, however, will result in people in Prince George, Kamloops and Kelowna
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contributing to a dedicated transportation fund. I would see that projects are going to be able to be built -- perhaps at some point the completion of the Beatton River road. Many of the other projects that have been mentioned during estimates could be financed out of the gas tax levy. I would see that the tolls placed on the lower mainland bridges will be there primarily to pay for that bridge and for the immediate roadway or transit improvements leading to it.
For your general information, when I tried out the idea of a few tollbooths around Vancouver on the mayor of Vancouver -- who, I understand, has applied for another job -- he applauded the idea and said that he would cooperate with me on it.
Vote 58 approved.
Vote 59: ministry operations, $761,767,000 -- approved.
Hon. A. Charbonneau: I move that the committee rise, report resolutions and ask leave to sit again.
Motion approved.
The Committee rose at 7:15 p.m.
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