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, JULY 6, 1993
Morning Sitting
Volume 11, Number 22
[ Page 8249 ]
The House met at 10:03 a.m.
Prayers.
H. De Jong: It gives me great pleasure to introduce Mr. Randy Dueck and Miss Deborah Walton from the constituency of Abbotsford. I ask the House to give them a warm welcome.
PROTECTION OF BRITISH COLUMBIA HERITAGE ARTIFACTS ACT
K. Jones presented a bill intituled Protection of British Columbia Heritage Artifacts Act.
K. Jones: This bill is intended to rectify a situation which occurred as a result of the closing of the B.C. Transportation Museum in Cloverdale. Artifacts and automobiles were disposed of without an opportunity for the donors to have the first choice to take back the item they had gifted to the province. Some items were given without any benefit to themselves under the assumption that the artifact would be permanently held as a piece of tangible history available to future generations of British Columbians. This bill provides the means to accommodate the purpose of providing for fair and proper disposal of heritage objects. I would like to acknowledge the assistance and guidance provided by our two research interns, David Basi and Peter Nyers, and by researcher Kimball Kastelen, and thank legislative assistant Alice Hughes for her primary research and general assistance.
Bill M224 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.
Hon. M. Sihota: As one of my colleagues said, it's awfully late to be introducing legislation in this House. In any event....
Interjections.
Hon. M. Sihota: I'm sorry. I just wanted to see if members were still awake after last night's debate.
If I may, hon. Speaker, I'd like to call committee on Bill 32.
ENVIRONMENTAL ASSESSMENT ACT
The House in committee on Bill 32; D. Streifel in the chair.
Hon. J. Cashore: With regard to section 1, I move the amendment standing in my name on the order paper.
[SECTION 1, in the proposed definition of "reviewable project" by deleting paragraphs (c) and (d) and substituting the following:
(c) any construction, operation, modification, dismantling or abandonment that has been lawfully completed before this section comes into force, or
(d) any construction, operation, modification, dismantling or abandonment that, on the coming into force of this section,
(i) has been started, and
(ii) is neither a regulated project under the Utilities Commission Act, a reviewable mine development under the Mine Development Assessment Act nor a project reviewable under procedures generally known as the major project review process.]
Section 1 has been amended by including "operation" in the list of project activities specified in clauses (c) and (d) in the definition of "reviewable project." This amendment corrects an oversight in that definition. A project whose construction, operation, modification, dismantling or abandonment has lawfully been completed before this section comes into force is not a reviewable project. This definition also excludes the application of the bill to projects for which construction, operation, modification, dismantling or abandonment has been lawfully started and which are not regulated projects under the Utilities Commission Act, the Mine Development Assessment Act or projects reviewable under the major project review process. The language of this definition is consistent with the definition of "project."
W. Hurd: I have just a brief query on the minister's explanation. This is only one of a staggering series of amendments to this particular bill. Under subsection (d), could the minister advise us whether any specific mine development project currently under review by the mine development assessment process is exempted? Would that be the definition of "operation" under this section? Can the minister confirm whether any mines are currently in the process of mine development assessment, which would specifically exempt them under this bill's terms of reference?
Hon. J. Cashore: No current project is specifically exempted.
W. Hurd: Perhaps the minister could offer a more detailed explanation of exactly what is meant by "operation" under this section, given the fact that it has now been added as an amendment by the government. In terms of the definition in the act, can the minister perhaps advise us how "operation" was defined in the previous bill and how its inclusion now as an amendment would in any way change the definition of that term?
Hon. J. Cashore: It doesn't change it. It was omitted. There was an oversight in that it was not included in the core legislation.
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W. Hurd: I have a couple of further questions dealing with the interpretation section of the bill. For the benefit of the committee, can the minister define a "regulated project" under the Utilities Commission Act? The committee understands that that has also been exempted from the effects of this bill coming into law. Are we dealing with projects such as the construction of a dam, a water diversion or a power plant? Given the rather convoluted wording of this definition section, can the minister first confirm what effect this bill will have on a regulated project under the Utilities Commission Act?
Hon. J. Cashore: All projects under the Utilities Commission Act, the Mines Act and the Energy Act continue to be in effect until this legislation comes into effect.
G. Wilson: I wonder if the minister might want to comment on the definition of "first nation" under Part 1, "Interpretation and Purpose." I raise this in light of an amendment that was attempted on another piece of legislation. A definition was introduced and was rejected as being unacceptable. Can the minister tell us what is different in the definition in this particular instance from the one in the previous bill that we commended?
Hon. J. Cashore: In the previous bill the hon. member is referring to -- where he was requesting an amendment to include first nations -- it was relating to a definition of property. In the previous bill it was recognized in that instance that property was subject to the current definitions under the Indian Act and that that was subject to consultation and government-to-government discussions. In this instance it refers to an aboriginal governing body, however organized and established by aboriginal people within their traditional territory in British Columbia, and it is not a definition that necessarily refers to the land as defined in the Indian Act.
G. Wilson: I would be happy to go back and review Hansard on this question if I am incorrect, but it would seem to me that we were talking about a question of jurisdiction over land or territory. On the question of first nation in this particular instance -- which is introduced and referred to subsequently throughout this bill -- in this definition it would appear that a matter of jurisdiction is being discussed here. Could the minister comment?
[10:15]
Hon. J. Cashore: I believe it is correct that the intent of the hon. member for Okanagan East, in moving that amendment, was jurisdictional. I'm not arguing that point. That particular definition referred to a very specific definition as defined in the law, where the current definition under the Indian Act applies. In amending a provincial law, we did not have the authority to supersede that definition. This is a much more general application that is not necessarily tied to aboriginal first nation land as defined in the Indian Act. While I realize the intent was jurisdictional in the previous act that the hon. member is referring to, there is no question here that it is jurisdictional, and it's a definition which enables the participation of first nations in this process.
As I explained in the previous instance, it was my opinion that the request for that amendment was done with good intent. However, because we were dealing with a specific definition under the Indian Act, it could not be applied in that case. That definition did refer to land, and I would certainly encourage the member to refer to the earlier discussion under that bill.
G. Wilson: Given that one can only have jurisdiction over some territory or over one's individual person, I think, under the laws of Canada -- there is no jurisdiction that can be determined otherwise -- could the minister tell us what is meant by the term "their traditional territory"?
Hon. J. Cashore: Where this differs is that first nations would be included, for instance, on a project committee. There's a need for a definition of first nations because that would be an involvement in the process. So it's not a definition in relation to land or territory but in relation to first nations' participation in the project committee process.
G. Wilson: I appreciate that, but my question is more specific. What does the minister mean by the words "their traditional territory"?
D. Lovick: This is to deal with the amendment?
Hon. J. Cashore: This is the same definition that is found within the Treaty Commission Act.
G. Wilson: Mr. Chairman, in light of the comment from the member for Nanaimo.... I regrettably entered the debate a few minutes late, and it was my understanding that the amendment has in fact been introduced and passed. Is that not so?
The Chair: Hon. member, the amendment has been introduced, but we have not passed the amendment yet.
G. Wilson: Is it the wish of the Chair, then, to deal specifically with the amendment -- to pass it first?
The Chair: That would be correct, hon. member.
Amendment approved.
On section 1 as amended.
G. Wilson: Now that we've passed the amendment, we can deal with it. I apologize. I thought that had already been passed.
To come back to the term "traditional territory," does the minister acknowledge, or is it intended in this definition, that there will be some representation for aboriginal people who are living outside their
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"traditional territory," as was just explained, but may have the desire to have input due to the pending resolution of a claim?
Hon. J. Cashore: The "first nation," as defined, would be invited to provide representation. It would be up to them, therefore, to decide whether or not that individual was actually a resident within their traditional territory -- as in this definition here -- or was from outside that traditional territory. "First nation" would be defined, as stated here as "...an aboriginal governing body, however organized and established by aboriginal people within their traditional territory in British Columbia." If the individual was considered to be a member of that first nation, they would be free to appoint them.
G. Wilson: I'm sorry to have to go back over this. Because of the confusion over the amendment and whether or not it passed, could the minister simply restate the definition of "traditional territory"? I'm somewhat confused by the last answer.
Hon. J. Cashore: It's my understanding that traditional territory would be the area considered by a first nation to be subject to a land claim.
G. Wilson: In other words, the powers granted under Bill 32 to a first nation would prevail in any area that said first nation deems to have jurisdiction, rather than in any area where it established negotiated jurisdiction. I draw the minister's attention to the recent ruling by Judge Macfarlane, who made it explicitly clear that there is no ownership or jurisdiction in the Gitskan case, for example. Yet the Gitskan people will still argue passionately that the land under claim is in fact their traditional territory. There is a difference in perception between the first nation and the courts of the land. Which side is the minister going to rule on in light of this definition?
Hon. J. Cashore: I really don't think it's a problem. If the negotiations have resulted in a settlement, then there's a very clear definition. If it hasn't, I cannot imagine anybody disputing the first nations' choice of the individual they would select to represent them in this process.
H. De Jong: Perhaps the minister can enlighten us on what kind of projects are included under the definition. Are they the projects that are normally reviewed by the Minister of Environment for an opinion or a ruling on whether they meet the various standards that the province imposes on industry, or can an arm of government also make a recommendation to the minister for an assessment of such a proposal?
Hon. J. Cashore: I believe that the scope of the question the hon. member is asking would be better addressed under section 3. These are simply definitions. The question is about how the process would be applied, so section 3 is the logical place to have this discussion.
H. De Jong: Perhaps I haven't made myself entirely clear. I'm concerned about the broad definition of projects in this particular section. I know from experience.... In fact, I was told just the other day that if a farmer wishes to build a house on a property that's 171/2 acres, then he needs an assessment done -- this is in the floodplain area -- but if it's 20 acres it doesn't need an assessment. I'm not sure where this regulation comes from. That's why I'm asking the minister whether an arm of government, such as the Land Commission, can stipulate having those applications referred to the Minister of Environment for an assessment.
Hon. J. Cashore: I still believe my point is valid that this would be better discussed under section 3 and further sections. Briefly, all definitions of reviewable projects are subject to regulation, so a process is set up within the bill that would result in consultation leading to the definition of those regulations.
H. De Jong: I have no problem asking for more details on that particular situation when we come to section 3. However, I take offence at the minister not being willing to answer at this point. We're dealing with an overall statement here and the interpretation of projects, and I fail to see why the minister cannot answer the question. The simple question is whether an arm of government such as the Land Commission can make rules and regulations for certain projects within the farming community and whether they can be referred to the minister under this act to be reviewed on an environmental assessment basis.
Hon. J. Cashore: I thought I had answered the question in stating that it would be subject to regulation. The answer is no, it would be subject to the definition in the regulation.
J. Tyabji: In the discussion we were having a few minutes ago about the definition of first nation, we referred back to this same minister's bill on contaminated sites. The minister said that the amendment about aboriginal people that we tried to introduce in that bill was with regard to property. I have looked it up, and it was actually about the definition of a governing body. We find here that first nation is defined as an aboriginal governing body. So the question is: why is there an inconsistency? Technically, both bills will address jurisdiction over property. This one addresses it in a general sense with regard to aboriginal jurisdiction in terms of government. The last one was a little more specific at the point where the bill comes into force, for example, on the contaminated site. But in general they both deal with property. We introduced that amendment to Bill 26 because we thought it was inconsistent to have a recognition of the aboriginal people as a governing body in one bill, as in this one, while there wasn't any recognition of the placement of culpability for contaminated sites. Why is there an inconsistency? Why is it defined here as a governing body? Further to that, we can explore the other definitions in the context of this extra jurisdiction.
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Hon. J. Cashore: I still stand by the answer that I gave. This is a definition relating to process; that definition was not relating to process.
J. Tyabji: I fail to see how there is any difference. In this bill we are dealing with a process of environmental review, and in that bill we were dealing with a process for contaminated sites. It's still process. We still have people at the table; they are the same people. It's not as if the aboriginal people disappear when a contaminated site appears, but all of a sudden they are here when it is the Environmental Assessment Act. Maybe what the minister is trying to get to is that the Environmental Assessment Act is the preliminary determination of a site, whereas the contaminated site is there and we're looking for jurisdiction as to who is responsible for cleaning it up. That's the only difference that I can see. What bothers us very much is that there is a preference to recognize this jurisdiction when it is something that allows consultation and contribution at the table preceding the designation of a site, but once a site has been designated as a contaminated site, there's absolutely no inclination to recognize the aboriginal people as people who will have input in terms of responsibility for that site. They're both process bills; both bills have to do with property. The only difference is that one is responsibility for payment for cleanup, and this one is basically input to the process for determination.
Hon. J. Cashore: The difference is that the contaminated sites bill deals with a specific site that comes under the definition of the federal Indian Act. This bill refers to a process which would involve a first nation as a body that would be involved, and appointed to the committee in the case of this process. They are two different things.
[10:30]
I understand that the hon. member, in making the point, is really debating a previous bill. Obviously the hon. member does not agree with the explanation that I am giving. But in any case, one could argue, since this is a point of argument, that the hon. member has given no reason that pertains to this section of this act and says that the definition should not be there. I don't hear that argument being made, and under the rules this should be a debate that is specific to this section of this act. I understand the point that the hon. member is making in wanting to make reference to a previous debate to make a comparison. I have responded to this question several times now, and I really think that unless the hon. member has some question about this as it relates to this act, we would simply be going over this ground again and again.
J. Tyabji: Let's assume that we can't change the minister's mind with regard to this definition being inconsistent with the other legislation. The minister said that traditional territory basically refers to land that's under claim. We know that if we add up all the land under claim in the province -- and we know that it's under negotiation and there's going to be some determination about final jurisdiction -- a considerable portion of the province is under claim. We have no idea right now what portion of the land we are going to be dealing with or even what level of jurisdiction the aboriginal peoples will have.
Let's leave that aside for a second and look at the definition of effects under "Interpretation." It says: "...'effects' means environmental, economic, social, cultural and heritage effects." Based on precedents and based on some of the problems that have occurred in the province in the last few years with regard to disputes over land where there has been some inclination for resource development but perhaps a heritage dispute -- most particularly by the aboriginal people -- and a cultural dispute, I'm not sure how that's defined. Could the minister please expand on that definition, first of all, and perhaps give some specific examples where that definition would apply with regard to cultural or heritage impact?
Hon. J. Cashore: If a project proposal turned out to be on a site that had cultural or heritage values, it would stand to reason that in one or more phases of the review processes outlined in this bill, information would come to light. That would either be subject to a recommendation about the future of the project or subject to efforts towards the mitigation of impacts on those cultural or heritage values. So it fits very clearly within the concept of the need for such an assessment.
J. Tyabji: The question that automatically comes up is: who decides? Who defines culture and heritage, and who is the final determinant of that? We know that the minister and/or the executive director, to a large extent, has a lot of discretionary power in this bill. In effect, the minister can decide whether or not it's a cultural or heritage impact. I want to add that I think it's a little bit sloppy to have, under the definition of effects, the word "effects." That's a circular definition, and we've talked about that before. For the purpose of drafting legislation, you might want to talk to the staff about "impacts" or something else, rather than having a circular definition.
Within this, the minister could determine that a site that is up for review or is potentially reviewable, as having a cultural impact on the heritage of grizzly bears, salmon or whales. We have seen literature from this party talking about how whales and bears have a voice. I am not necessarily taking a great deal of umbrage with that, but I am asking if the minister has discretion under this bill to arbitrarily designate cultural and heritage effects. That's certainly the way it reads right now. Or is there some kind of limitation in that implication? Who is going to put the limits on this definition and how is that going to be translated?
Hon. J. Cashore: I can see this being revisited under further sections of the act. As I have said before, further clarification on this issue would be subject to the regulations. In listening to the hon. member, I think that she speaks well in support of the bill. She is expressing concerns about what happens with various cultural or heritage situations, and that underlines the need for the bill. I am sure she agrees with me that we
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need to be cognizant of those values. A recent example would be the burial grounds on Cheslatta Lake. As a result of Kemano 1, the Cheslatta native people came home from trapping and found that their burial grounds were floating away, because the water had been allowed over the dam in a way that caused devastating impacts. Obviously the hon. member is on to an issue here that underlines the need for this legislation.
C. Serwa: I would like to go back to the definition of first nation. It is not abundantly clear. The definition used under first nation is so broad, expansive and inclusive that it appears that anyone could be designated or appointed to the board on this basis. When we speak about traditional territory -- and we all recognize that about 120 percent of the province is under aboriginal land claims -- we realize that there is a tremendous degree of conflict over overlapping territories.
The definition of a governing body is the ambiguous type of definition that I have a great deal of difficulty with. I don't know for certain whether it is restrictive and precludes the possibility of simply a family member, or whether it allows the opportunity for a band council, for example, to have one of their members selected or appointed. Or is it the tribal council? When you are talking about a governing body, what type of a governing body are you going to utilize? If there is a subsequent splinter group that is in opposition to, say, a tribal or a band council, how is that going to be selected? Who determines what a governing body is under the broad, expansive definition that you have for first nation? Perhaps the minister would clarify that for me.
Hon. J. Cashore: It is very clear. It would be the aboriginal governing body of the area in question. Perhaps the hon. member could clarify the problem that he thinks might ensue. I do not see the problem. It is my understanding that we have very responsible people representing first nations in British Columbia. To my knowledge, they seek to participate in finding ways of working together to find solutions to the various kinds of issues that would be dealt with under this act. I wonder if the member could enlighten me as to the kind of problem that he sees possibly resulting from this definition. I think that the definition is very clear; it is inclusive. It is understood that some of these areas are under negotiation. At the same time, I don't understand.... I realize that it is not my role to put a question to the hon. member, but I do not understand specifically what problem this would create. It seems to me that it is quite appropriate and quite valuable that the first nations people would have us recognize their right to name their appointee to this process. I would certainly think that to not define and understand it in this way would be a very paternalistic approach.
C. Serwa: My concern comes from the clear recognition that the native people are no different than us as legislators in this particular room. There are all sorts of different perspectives on issues. There is a great deal of political competition between various levels of native government. There are a variety of degrees of influence. There is protocol on a particular matter. While the minister says firmly and unequivocally that the definition is very clear, it is not very clear. There is no protocol for the determination. Who has precedence? Would it be a family member who has lived in or utilized a traditional area? Certainly among the native families, traditional hunting and trapping areas have been utilized for generations. We have influences, as I've indicated, by a band council in a certain area of a greater tribal area. There is a great deal of competition. Native people and ourselves are no different, and there is a great deal of competition. So what is the protocol? What happens if there is a splinter group, and there is a competing interest? There is a native bureaucracy, and the native people may not see eye to eye. The concern I address is like the constitutional accord that failed. The native leaders, the elitists in the native community, supported the constitutional amendments. The native people across Canada defeated that. What is your protocol arrangement for the definition of governing body? At what point do you make a determination? Do you start with the tribal council and then the band, or do you go to a family member? They are all part of governing bodies.
Hon. J. Cashore: The two sections of the bill are section 17 and another section whose number I will get for you in a moment. One of these sections is to ensure that a first nation is informed when a project gets under the project registry and the application process is underway. The other section has to do with the appointment of the person nominated to the project committee.
Clearly it's an understandable process that leads toward being able to get the project committee up and going. I really think it's a bit convoluted to hear this rather extensive discussion about the constitution and various things, when what we are trying to do is find a practical way of getting up and operational, making sure that the representation is in place. Again, I am listening very carefully to what the hon. member is saying, but I do not hear an explanation of what the potential problem is.
G. Wilson: On this particular question, picking up from the member for Okanagan West, let me be more specific about the concern that is being expressed because I think the minister needs to take heed.
I hear the member for Nanaimo saying these are only the interpretation sections of the bill, and that's true. But these definitions we are now debating are what will have weight and effect in every other section of this bill as this bill is interpreted and as the law is applied. The difficulty we have with the definition of first nation is that it provides a governing body, which assumes that there is independent jurisdiction in the province of British Columbia without any legislation or legal authority to make that assumption. It provides that it is within their traditional territory. Yet the minister has said that their traditional territory is any
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land that is currently under claim, and there is absolutely no legal authority or jurisdiction for that.
He asks what possible effect this can have. Well, let me give you a case in point in my own riding: the sinking of the Chaudi�re in the Sechelt Inlet. The Sechelt Inlet is under claim. It is not considered by the Ministry of Environment, Lands and Parks to be under the authority of the Sechelt Indian government district. The Sechelt Indian government district, in my judgment, was not adequately informed of the sinking of the Chaudi�re. I believe they had a legitimate concern that pollution may result from that sinking, although I don't happen to believe that the pollution was a concern. They had a legitimate concern that the process was not adequately and properly followed. Here is a case in point, and the Sechelt Indian government district presumably will be given a seat on this environmental review authority.
[10:45]
The Sechelt Indian government district is proposing a major marina development at the base of Davis Bay. Davis Bay lies within the land that is currently under the jurisdiction of the Sechelt Indian government district. The people of Sechelt want an environmental review because they deem that the potential environmental impact of such a marina on a very sensitive estuary and delta region in the Davis Bay and Chapman Creek area is enormous. We're hearing that on the question of the Chaudi�re, there will be full privilege and rights given to the Sechelt Indian government district to have a say about whether or not that ship should have gone down in land they claim -- although that claim is not given any jurisdiction under the laws of British Columbia -- but in the matter of the development of a marina, this government has absolutely no weight, say or authority with respect to imposing or forcing any environmental assessment review. That is fundamentally unjust.
The concern we have here is that when you start to look at the definition, the minister has defined the effects to include environmental; economic; social -- and I'd like some definition on this; cultural -- whatever that means; and heritage. If those are going to be determinate factors that will give the yes or no for projects to proceed on land that is currently under claim, then the minister is yielding on a point that is going to create some considerable controversy and conflict for this government, and therefore the people of this province, because one is necessarily going to have to argue about what weight that representation on those committees is going to have with respect to the final decision on the project. In the case of the Chaudi�re, my suspicion is that if the Sechelt Indian government district had their way, the vessel would never have gone down, and some would argue that there would have been a substantial lost income to the Sunshine Coast, because it has been an economically viable project.
A specific question to the minister: on the first-nation question, if indeed the traditional territory is land that is under claim, how does the minister deal with matters where there is a series of overlapping claims, and where there may be more than one aboriginal government that has authority or claim to that land? Secondly, is it possible for there to be more than one governing jurisdiction within a single area of claim? With the internal politics, you will often find that more than one factional group has a government "established," as it says here, "by aboriginal people within their traditional territory" -- in any manner, however organized.
These are important questions, because we're dealing with significant resource use problems in British Columbia. The minister has to know that the broadness of this definition, and the interpretation of that, could very well get this government, and therefore the people of this province, into some serious conflict situations. Could the minister respond to that?
Hon. D. Zirnhelt: The minister may well want to add to this, but I want to enter this debate, because you are trying to ask for a clear establishment of all the protocols, relations and jurisdictional questions, to be solved in this one piece of legislation. There are other places, and other tables, where policy will be determined. For example, we have memoranda of understanding with the Union of B.C. Indian Chiefs; with specific tribal councils, in some cases; and also with the summit, where we have established policy tables where we can discuss policy issues. So if there was a need for a protocol to decide which first nation was governing body, be it a tribal council or a more localized aboriginal government, we could deal with that at those tables.
We have consistently said that there is nothing that comes up by way of process that is a new process for consultation or that derogates from policy, law, etc. That relates to the settlement of any claims. So the claims are on the table; there is nothing given in legislation like this. This doesn't supersede the Treaty Commission Act, any other constitutional issues or interpretations subsequently made by courts about particular cases.
The simple answer to the questions that have been asked is that we have policy tables which we will refer policy issues to, so there will be some consistency across the province. There is consultation on those matters with third parties as well. This piece of legislation attempts to bring the aboriginal people into the loop, so that they can't say they weren't consulted or weren't part of the decision-making where they have legitimate constitutional or other rights. This doesn't add to their rights or derogate from their rights.
There is always a case when a judgment call has to be made as to who represents whom. The point has been made very well by the Minister of Environment that we will not be paternalistic about this. I think you can define who that is in most cases where there is a tribal council or some other aboriginal government. I don't see the problem. I don't see this legislation solving any of the additional problems that you pointed out or creating a problem. It provides us with a way to live up to our fiduciary obligation.
G. Wilson: We have to be very careful in this discussion, because we're dealing with definitions that are going to have a profound impact on the rest of this bill. I don't take issue with what the Minister of
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Economic Development has said with respect to a definition of legitimate legal rights. In the MacFarlane ruling that came down, rights were established and are there without question. I don't take issue with that; I never have. It's not a question of rights. It's the question of jurisdiction and the authority to govern and make regulations with respect to provisions that will exist on lands under claim. That's what my concern is. As has been pointed out, almost 100 percent of the province is currently in that category.
The difficulty I have is when we take that first-nation question and apply social, cultural and heritage effects. Surely a logging operation that disrupts lands that have traditionally been "considered" under trapping rights, or lands that have been traditionally used with respect to both the freshwater and saltwater fishery, is going to constitute a social effect. I'm assuming that this is what is meant by social and cultural factors. These are very nebulous terms; they're hard to define. Maybe we will be more satisfied and have a greater comfort zone if the minister can give us examples of what is meant by "environmental, economic, social, cultural and heritage effects" under the definition of effects. Give us some concrete examples of what we're talking about here.
Hon. J. Cashore: First of all, remember that the application of this definition later on in this bill refers primarily to two kinds of occurrence. One ensures that information gets out, which is hardly an occurrence that would result in some major impact that might unfairly affect the decision. Information getting out is one of the major applications of this definition later on in the act.
This definition is used in one other section in the act where a member of a first nation would be appointed by that first nation to sit on a project committee. In that instance, the aboriginal person would be one of between five and ten individuals sitting at a table doing the work of the project committee. It is not decision-making power that this act gives to this project committee; it's the power of recommendation.
I think this is a good definition. I don't think the application of it is very far-reaching, and therefore I think that some of the concerns around what the impacts of this may be.... I take the point of the hon. member for Powell River-Sunshine Coast. He is quite right when he says that these definitions are important; after all, they're applied in subsequent sections of the act. That's a valid point. But I have taken quite a bit of leeway in trying to explain those further sections where this definition is used.
The hon. member has asked me to give examples of environmental, economic, social, cultural and heritage effects. I think an example of an environmental effect would be a project where the construction of a pipeline could potentially result in the destruction of fisheries habitat. That makes it an economic as well as environmental issue because, if the damaging of the environment caused the loss of habitat -- the loss of that stream's ability to return both its commercial fish and the fish used in guide-outfitting and other activities -- then there would be an obvious economic effect.
A social effect would be where a project could have social impacts on a neighbouring community, which certainly would need to considered. Those impacts might be positive, but they also might be negative if the project resulted in a loss of jobs or, more importantly, the community being downwind of pollution. Then that community impact would need to be considered.
An example of a cultural impact would be an issue having to do with sustenance resources for first nations. As a result of the courts and negotiation processes that are underway, we know that we need to consider the sustenance issue with regard to first nations where that may be impacted by a project. I think the hon. members opposite have given some examples of the heritage aspect. As we said before, certainly one example would be the burial grounds on Cheslatta Lake, where the Cheslatta band was impacted. Those are a few examples in response to that question.
G. Wilson: I don't dispute that there is an information aspect to this bill. Notwithstanding that, we have some concern that if we look to what the functional purpose is under part 1 of the bill -- and with the indulgence of the Chair, I would very briefly read from the following section, which is going to be governed by the very definitions we're talking about now -- it talks about the effects of reviewable projects being the "environmental, economic, social, cultural and heritage effects" as defined here. The very next line says that the purpose is: "...(b) to prevent or mitigate adverse effects of reviewable projects." So this isn't just information; this is a decision to prevent projects proceeding if they're deemed to be somehow negative in terms of those effects. Unfortunately, there are no regulations attached to this. We have absolutely no understanding of how they're going to be applied. The reason we have to be vigilant in our canvassing of this section is that it isn't just an information question; it's going to have a profound effect on whether projects proceed.
[11:00]
I wonder -- and the minister might want to comment -- under these definitions and guidelines, how different would the Clayoquot situation be today? The adverse effects on environmental factors are significant. There's an argument on the opposite side for economic impact, but you could argue that it's short-term. On the question of cultural and heritage effects on first nations, it's profound. So perhaps that was the wrong decision.
Hon. J. Cashore: I'll try to keep track of the three points I need to respond to there. The first was with regard to information. I was simply making the point that the definition of a first nation relates to a section later in the act which requires that first nations receive information about a project. I'm sure that's not contentious. With regard to the point about the importance of the definitions, I have agreed with the point that the hon. member makes. I do understand the point, and I think that's where we should be directing our discussion on the definitions section, recognizing the importance of those definitions in their application later
[ Page 8256 ]
on. With regard to the question about Clayoquot, the answer is that it would not be subject to this act but to the forest practices act that will be introduced next year.
J. Tyabji: I want to explore the minister's expansion on the definition of effects. We've been talking about effects from the perspective of the first nations, and I'd like to look at the other side of the coin. When we talk about cultural and heritage effects, let's talk about the non-aboriginal peoples. Since the minister has talked about aboriginal territories being defined as the land that's under claim, I think it can be very successfully argued that there are fifth-generation non-aboriginal peoples in B.C. who have a social and heritage claim to land that is under aboriginal claim right now. The member for Powell River-Sunshine Coast was talking about a specific example where an estuary is going to be developed, but because it happens to be under aboriginal jurisdiction the environmental impact assessment is probably not going to happen. In that case I think we can argue that there are going to be social and cultural impacts on the non-aboriginal peoples in that community.
How is the minister going to deal with the fact that there are going to be effects, as defined in his bill, on non-aboriginal peoples in aboriginal territory?
Hon. A. Edwards: I enter the debate just at a point where I'm not.... It's not clear to me what the difference would be whether we answer yes or no, in a sense. In talking about effects, this bill simply deals with things that are currently being dealt with, but not by the legislation. The legislation hasn't named what we are doing in our activities. The legislation attempts to say that when we make these decisions on major projects, we do include all of these kinds of effects. They are effects that will apply to every kind of person in the province, and if there is an effect on somebody in the province, there is no reason why that effect should not be considered in this particular process.
Obviously, common sense has to apply to a lot of things. It certainly has to apply in an area where you're dealing with something as broad as effects. Under the circumstances, when we do major project review processes, which mainly we've done as energy or mining projects, I think these impacts have been considered. The public considers them important effects to be considered, and we are attempting to make sure that they are. The interpretation section of any legislation is not a dictionary, but it is descriptive. Therefore the words are there to describe the kinds of effects. Under the circumstances, I think what we're arguing is whether or not this interpretation should be there. We do connect it, but basically that's what we are talking about here. Will these effects be considered? Yes, they will be. I think that's the important thing to consider in the interpretation section.
J. Tyabji: I am finding that the practice hasn't held to that. We have that example. We also have other examples where a project is going ahead on land that is under aboriginal jurisdiction or an aboriginal claim. We can use the Davis Bay example. Will the minister call for an environmental impact assessment on something like that, because of the effects it will have on non-aboriginal people?
Hon. J. Cashore: This is a good example of one of the difficult aspects with regard to environmental assessments: it involves federal jurisdiction vis-�-vis the provincial government. Hence one of the purposes of this bill is to develop a single-window approach, as much as possible, where assessment will be involved. Therefore we would seek to ensure that an assessment is undertaken, and undertaken in concert with the federal government, which has jurisdiction in this area. The effect of the bill should be to facilitate being able to address that example.
J. Tyabji: I'm not sure if I understood the minister's answer, but I think he is basically saying that he's not in a position to do that by legislation because it's under federal jurisdiction.
Hon. J. Cashore: There are some areas where federal jurisdiction supersedes provincial jurisdiction. That is a matter of fact, a matter of law and a matter of history. So in part, this bill was crafted to find a way that we can work together in addressing these issues, while protecting the interests of the citizens of British Columbia.
Section 84 of this bill gets into the steps that would hopefully facilitate that single-window approach. As I mentioned before, we have had some success in the past under the major project review process. That is not a legislated process, but nevertheless, we learned a lot during that time. That process goes back to a previous government. Much of the major project review process is pro forma. Some of the issues we will be questioned on regarding this act have already been put in place, but they are not legislated. Much of this is pretty well standard pro forma definitions and procedures.
I still think the example the hon. member gave about the Davis Bay project is a good case in point. In this legislation we would seek to facilitate a process of working together with the federal government in the interests of British Columbians -- not a duplication of process.
J. Tyabji: If we take aboriginal traditional territory as the minister has defined it -- land that's under claim by the aboriginal people, and they have some jurisdiction over that -- we can assume that because that land hasn't been settled, it is still under provincial jurisdiction. For example, we have this act in force on land that's under claim but hasn't been settled yet. This minister has the power to call....
Interjection.
J. Tyabji: I hope the member for Nanaimo will get into debate, because I'm sure he has something to add.
D. Lovick: I'm trying to help you out.
[ Page 8257 ]
J. Tyabji: I can't participate in heckling; I can't hear what's being said.
What seems to be problematic is that although we can agree that on settled lands we're going to have an inherent unfairness -- because there's going to be federal jurisdiction that the minister will have to deal with -- on land that's under claim but hasn't been settled yet, the minister does have power to order an environmental assessment for a project being undertaken by the aboriginal community where the effects are going to impact the non-aboriginal community. Given the government's predisposition to not rock the boat in their treaty negotiations, I don't know that we have a lot of comfort that that will be done. That's basically what I'm getting at. As much as possible, we want to know that the minister will act with fairness and treat everybody equally. There hasn't been a disposition to do that. We saw a total discrepancy in terms of aboriginal versus non-aboriginal in the contaminated sites legislation. The excuse that's constantly being used is federal jurisdiction. The federal government doesn't have jurisdiction on land that's under claim but hasn't been settled.
Hon. J. Cashore: One aspect of governance is that changing circumstances are taking place on a number of fronts, including legislative and negotiation fronts. That's part of what it is to govern. Life goes on, you seek to develop appropriate legislation for the emerging conditions, and that's what this legislation does. Within this legislation we will make sure that environmental review is conducted most appropriately, and that it's done in awareness of the emerging consultations with first nations.
I believe that the win-win here is that this will foster cooperation in going about this, because I think it's in everybody's interests, regardless of ethnic background. I think it's in everybody's interests that we have such legislation facilitate that kind of cooperation in the interests of protecting the environment.
It is true, hon. member, that there are lots of unknowns out there. We know that is the way life is. But given that, this legislation is designed in such a way as to enable us, in the very best way possible, to address those issues that require the drawing in of a number of different issues and concerns. When the hon. member states that there are situations out there where we don't have all the final answers, that is to state the obvious.
L. Fox: After listening to the discussion, I think it's clear that all opposition members are extremely concerned about this bill. Given what the interpretation section does in providing guidance for the other clauses, and given that the minister has such sweeping powers under this bill to design regulations which suit his government's agenda, I think there is good reason for canvassing the interpretation section at some length. What I see out of this -- and I'm just going to paint a bit of a picture here that bothers me considerably, and I haven't heard anything from the minister....
Hon. J. Cashore: On a point of order, this is sounding very much like a second reading discussion. The hon. member has not made one reference to anything in section 1. He is talking about the minister having sweeping powers, which is not correct, and I'd be glad to engage in discussion about that contention in the appropriate section. Clearly, this hon. member has not made one reference that would connect anything he has said in the last three minutes to section 1.
The Chair: I think it would be appropriate for the Chair to remind the committee that we have enjoyed a tremendous amount of latitude this morning in the examination of the interpretation section. I would ask that we respect the rules of debate in committee, and refer the questions to the section under examination.
L. Fox: In fact, right in the interpretation section it says "responsible minister." As well, I had started to suggest that I was referring to the interpretations portion of this act. In his answers to questions, the minister has done little to dissuade me of my concerns, particularly about first nations and the project portion of the interpretation section.
[11:15]
If the minister wants to stand up again on a point of order, please do. We have lots of time, and I am in no hurry to go home. Perhaps the self-righteous member for Nanaimo wants to get up and get into the debate. Please do.
To paint my concern, let me give you a scenario that I think will happen with respect to the project section. Under the definitions, a project means a project within lands that are not considered jurisdictional lands today by native bands. If a pulp mill initiative that is presently on the books for my area were to situate off a native reserve, it would have to go through this process. But if it moves two miles down the road, even though it affects the environment in exactly the same way as it would on Crown lands, it does not have to go through this review process. If we were really concerned about the environment of British Columbia, as the minister says we are, then there would be something within this interpretation section to give those kinds of projects the same type of scrutiny, and force them through the same environmental process that they would undergo if they were not on band reserves.
I think that is the issue that has come to the surface here through much of the questioning on this particular section. The minister has not addressed it to any degree. I ask him to do that.
Hon. J. Cashore: One example that we could refer to is the Orenda project, which is in a traditional territory. We have been successful in working appropriately, step by step, on that project.
I will also point out that this is a wide-ranging discussion, and this is section 1, the section on definitions. I would like to hear the hon. member refer specifically to a definition and make his point. We will seek to respond. There is going to be plenty of opportunity to make some of the other points when we get into further sections of the bill.
I would also point out that this definition section is very pro forma. This is not dissimilar to the definitions
[ Page 8258 ]
that were brought in in the major project review process under the former -- albeit briefly -- Minister of Environment, the member for Okanagan West. The former minister, who sits in this House, presided over a process coming into effect that was a precursor to much of what we see here in these definitions. So I am sure that if he could just lean over and have a chat with his colleague, he would be able to explain to him that much of what we see here is standard procedure. It is to make sure that we have the kinds of definitions that ensure equivalency, as we seek to ensure that we are able to operate our own environmental assessment process in British Columbia in the interests of British Columbians.
G. Wilson: I am sure that the member for Okanagan West wants to respond to that, so I will be brief with respect to the definitions.
The minister is saying that this is wide-ranging. I don't believe it's so much wide-ranging as it is far-reaching, with regard to what he has just said. We've heard today from this minister that this government has yielded on two critical points: first, that traditional territory is now acknowledged as territory over which jurisdiction will be provided for aboriginal people; and, second, that aboriginal governing bodies, however they are constituted, have jurisdictional authority and weight in this legislation. Those are two profoundly critical points that are being made. With respect to subsequent claims, under the definitions provided here, the land that is under claim right now is going to be determined as land that will be under the authority or jurisdiction of first nations. These are profoundly important points that need to be made.
The point that was being made by the member for Prince George-Omineca is absolutely correct, in that there is now nothing to prevent the location and development of industrial activities on reserve land, which will bypass this environmental review process and will not provide the kinds of protections this government has provided. Notwithstanding how wide-ranging this minister might think that is, what we are hearing from this minister is far-reaching in terms of its long-term impact on the province.
C. Serwa: Going back again and expanding on that particular point, under the definitions I note that "...'applicant' means any person that proposes to undertake a project...." The minister has waxed eloquent on his environmental concerns. We have a definition here of an applicant being any person who proposes to undertake a project. Would the minister confirm that that means any project undertaken by any citizen in the province, including projects located on first nations lands?
Hon. J. Cashore: It deals with projects under provincial jurisdiction. Those projects will be subject to definition by regulation. I hear the hon. member laughing. I would point out that this is pro forma, and it's standard with virtually every province in Canada. As we go through the debate on the different sections of this bill, I will point out very clearly that this is the most business-friendly environmental assessment bill in Canada, bar none. In addition, the hon. member asks about the process for including projects that will be subject to a definition in the regulations. That will come about as a result of a consultation process that will last close to a year.
With regard to the concern about projects in traditional aboriginal territory, those areas that are subject to negotiation will be subject to this legislation. Where traditional territory settlements have been achieved, it will obviously require the process that results from the negotiating table to have a role in deciding how that will be applied. I think we should have an understanding in this process that all people in British Columbia have it in their interest to achieve a mutually advantageous environmental assessment process, since we really are all citizens of the same land.
When the hon. member for Okanagan West was Minister of Environment, he was part of a process that has been leading toward the legislation we have before us today. You might say that he is the grandfather of this legislation, and I am very pleased that he is taking his place in this discussion about the definitions.
C. Serwa: I'm certain the minister was not trying to point out my age to the Legislature by saying "grandfather," and I'll take it in the way I am sure it was intended.
I have listened very carefully to the minister's comments, and we certainly agree on the environmental concerns -- I don't think there's any disagreement whatsoever. It does seem, when we look at the applicant, and look at the lands under native land claims, and recognize that there will be no ability to monitor the environmental concerns, which are such high-profile issues in British Columbia.... Collectively we are all, native and non-native, very concerned about environmental quality in the province. Here we have an act that enables native influence through a director appointed to the board, which is quite appropriate -- no argument there. But we do not have the reverse situation when similar environmental concerns impact all British Columbians, or certainly those in the immediate area. We have no recourse to take any positive steps, other than what the minister alludes to as the process of negotiation. If the Environmental Assessment Act is to hold water, it should be fair and consistent and apply to all British Columbians. The minister has pointed out clearly that while the intent is noble, the fact remains that the act will not apply to a substantial area of the province. Whether we like to or not, I think it's fair to conclude that projects can take place on band land, for example, or perhaps on land that is presently Crown land under native land claims, which are not subject to the Environmental Assessment Act. That is my particular concern when applicant means "any person that proposes to undertake a project," and then in his comments the minister casually dismisses the first nations people.
Hon. J. Cashore: That is incorrect. This legislation applies to all Crown lands. I said before that where negotiations are underway, this legislation applies to Crown lands; the current definition continues
[ Page 8259 ]
to apply. Where a negotiation has been concluded, it would be subject to a process of addressing the issue between the first nation and the provincial government with regard to how to manage environmental assessment in that situation. We don't have such a situation yet, so this legislation, when it is enacted, will apply to the entire province. Let's make that very clear.
C. Serwa: I'll probably conclude my remarks on this definition section, but again expanding on the minister's remarks -- I know that we test the minister's patience -- fundamentally what we are looking at is the very essence of the foundation of this legislative package. It appears to me that there are cracks in the foundation, and that's why we're expanding on the definition. It would be wrong for us to gloss over or minimize concerns that we've raised with respect to this definition section, whether it's the definition of first nation or applicant. We will see that it's the very foundation. You certainly can't start building a house at the roof and build down; you have to start at the foundation. While we may try the minister's patience, I have a great many concerns -- again, not so much with the intent of the legislation, but with the constraints of provincial jurisdiction in this matter, and what the best basis for negotiation will be. I don't know what the trade-off is in negotiation. So there are valid, real concerns with the actual practical application of some definitions in this section. I just want the minister to understand that. No response is really required.
D. Mitchell: Perhaps the minister's bill will be reviewed in committee stage in a more expeditious fashion, after having gone through this discussion of the interpretation section. We can only hope; it's just a guess, and there's certainly no guarantee.
Under the interpretation section, I have a question with respect to the definition of responsible minister. The fact that the bill actually goes out of its way to define responsible minister is an interesting feature of this bill. This is somewhat unusual in a piece of legislation that's brought before the House. The minister responsible for the process is of course the Minister of Environment, the sponsor of this legislation. The fact that the interpretation section goes further to define responsible minister is interesting. I suppose what it's suggesting is that the Minister of Environment will be, to some extent, double-teaming with other members of the executive council -- perhaps his colleague the Minister of Energy, the Minister of Tourism, the Minister of Forests or others who are involved in particular projects that come forward.
[11:30]
Why is this necessary? The minister is given broad powers under the legislation. I certainly don't begrudge him that; I think the Minister of Environment is and should be among the most powerful ministers, if not the most powerful minister, in the executive council. But he has the ability to work with his colleagues in cabinet. The Minister of Environment certainly has the ability to work, hopefully, in cooperation and in collaboration with all members of the executive council. So why would it be necessary to enshrine in the statute...? Of course, we will discuss this later in different sections, but perhaps by addressing it now we can expedite that. Different sections of the bill refer to the fact that the minister and the responsible minister will proceed together -- hand in hand, so to speak -- when it comes to a reviewable project. If the minister could address this now, it might expedite things later. Why do we need to define responsible minister in this fashion in the interpretation section of this bill?
Hon. J. Cashore: I think that's an excellent question that goes back to the point I made a while ago when I said that this is the most business-friendly environmental assessment bill in Canada. But I believe it's also very good for the environment, because obviously the environment and the economy are mutual.
What we have developed here is a bill that recognizes that we have to lodge the administrative aspect with a certain ministry. Because the Ministry of Environment and the Minister of Environment have that encompassing role, that certainly makes sense and it's logical. It's also standard with regard to other environmental assessment administrations in Canada.
With regard to the question about responsible minister, I would like to defer to my colleague the Minister of Energy, Mines and Petroleum Resources to answer that.
Hon. A. Edwards: I would like to say -- perhaps I'm alerting the member on the other side to something -- that we had some discussion about how this bill would be titled. I'm not going into that discussion, hon. Chair. This bill covers not only an environmental assessment but also a project review. The Ministry of Environment is not appropriately staffed to review a project in every case -- for example, a mine project. When you have a proposal for a mine, the Ministry of Mines, which is appropriately staffed, determines whether the project has an appropriate review in terms of its safety, its appropriateness and all the requirements that those of us who deal regularly with regulations and governance of the mining industry would have. In that case we are saying very clearly, as we did.... I might point out to the member that in the previous Mine Development Assessment Act we had the minister with the concurrence of the Minister of Environment. We now have the Minister of Environment with the concurrence of the responsible minister -- responsible minister because it may not always be the Minister of Energy, Mines and Petroleum Resources. It may well be the Minister of Economic Development, the Minister of Tourism or another minister who has to deal with a particular major project. But it does not make sense to have the project review ignored in that sense.
The mining industry in particular -- and the petroleum industry as well -- has made that case very clearly, not only to me as their minister but also to the Minister of Environment, that in a project review it's very important to them that they deal with people who understand and work with the industry and those kinds of projects on a regular and continuing basis. It's
[ Page 8260 ]
terribly important to the broad success of what is happening, to the broad directions of what is there and to the general participation and cooperation that goes on around this process that we have the involvement of the responsible minister.
D. Mitchell: I thank the Minister of Energy for that response. I guess my suspicion is right: there is a tag-team approach going on here with this legislation. There is nothing wrong with that. I think there is a concept of the collective responsibility and accountability of all members of the executive council. That is enshrined in our parliamentary system and in our style of government.
I am wondering about the specific definition of responsible minister in this legislation. It's conceivable that there could be several responsible ministers if a particular project had heritage implication or effects that went beyond any particular ministerial portfolio, depending on how the government of the day organized itself. That seems to imply that there will be a committee approach within cabinet to reviewing some important projects that have effects as defined under the interpretations section that might cross boundaries of any particular ministry, if they have cultural, heritage or economic effects within certain sectors of the economy as well as the environment. Are we really suggesting that there is a kind of quasi-committee approach with this legislation; that there isn't one minister in charge; that the Minister of Environment is not specifically in charge, but that there is a broader approach here -- something innovative that we haven't seen before in terms of public administration?
Hon. A. Edwards: There's no question that the administrative council works in concert. But here is an environmental assessment process that includes a project review. That requires the kind of expertise and technical knowledge that often comes with specific ministers other than the Minister of Environment. So I would say that very clearly there are many broad effects here; we've named several. But we have two ministers: in essence, the minister who has the technical expertise to do the project review; and the Minister of Environment, who is working with the environmental assessment. The concern has been that we include the environment and the economy -- that there be two ministers who do the sign-off. As I say, we're including a minister of a ministry with the technical expertise to do the kind of assessment that we need, for example, of a mine or an energy project. But we are not making this into a happy-dancey "let's all hold hands" sort of thing -- if that's how you were characterizing it. Basically there are two ministers who would sign off. This is very clear and understandable. It is very similar to the mine development assessment process and the B.C. Utilities Act, in which projects also had to be signed off by two ministers.
The Chair: I think it would be appropriate for the Chair again to remind the committee of the latitude that's been enjoyed in the examination of section 1. I would remind the committee that it would be more appropriate to address questions specifically to section 1 and try to avoid the philosophical style of second reading debate. Thank you.
D. Mitchell: Just one final question under the interpretation section, then, again dealing with the responsible minister. I appreciate the comments of the Minister of Energy, but perhaps I'll ask the Minister of Environment: who is ultimately in charge of the process and of this legislation? That's quite fundamental. The minister says there could be a combination of the Minister of Environment and the responsible minister. But as I point out, depending on the nature of the project, there could be responsible ministers; I suppose there could be more than two ministers. So the question is: who is in charge? Is not the Minister of Environment ultimately in charge? The proponent of a project that comes under the assessment process in this legislation would clearly want to know who is ultimately accountable for the decision-making process.
Hon. J. Cashore: The Minister of Environment is ultimately accountable. The Ministry of Environment, Lands and Parks is responsible for the administration of the act. The minister responsible and the minister, as defined, have mutual sign-off in different phases of the act, and we'll get into that in further sections. With regard to the question about when a third or fourth minister's considerations also come into effect, those ministers do not have sign-off. The minister and the minister responsible, as defined, would have sign-off on a specific project. It's clearly understood that those considerations that come under other ministers as well would have to be dealt with in the review process.
G. Wilson: Actually, the abbreviated version is paradise, and I'd be happy to represent that.
The discussion raised by the member for West Vancouver-Garibaldi causes some confusion, in my mind anyway. I'd like to come back to the question of a reviewable project and spend a bit of time on (d) under "reviewable project." First of all, this section doesn't define it. It says that it's under section 3, which is anything the Lieutenant-Governor decides, and under section 4, which is basically anything the minister decides on. So it really doesn't provide us the definition we need.
Notwithstanding that, if we read this language very carefully, it says it "...does not include any construction, modification...," etc. That is consistent with the previous definition. Then it says:
"(d) any construction, modification, dismantling or abandonment that, at the coming into force of this section, (i) has been started, and (ii) is neither" -- so this is excluding these projects; it's a double negative -- a regulated project under the Utilities Commission Act, a reviewable mine development under the Mine Development Assessment Act nor a project reviewable under procedures generally known as the major project review process."
If we read the Mine Development Assessment Act, what you're talking about here is principally large-scale coal and mineral operations. I'm hearing from the minister that in a mine situation you need special
[ Page 8261 ]
expertise. Yet it is implied in what we're dealing with here that those major projects are not going to come under this review anyway. How does the minister reconcile that?
Hon. J. Cashore: We did canvass this section a bit earlier. It deals with the time during which this act is coming into effect and with the issue of projects that are currently underway.
G. Wilson: I understand that, but it says that what it is under is the definition of a reviewable project. We will come back to talk about the problem I have with that first paragraph, because basically it doesn't define it. The definition is anything that the Lieutenant-Governor-in-Council defines, or anything that the minister may consider constitutes a reviewable project, even though it is outside the regulations. That is what the previous two sections say.
That notwithstanding, it says it does not include those that have "been lawfully completed...or" -- it doesn't say "and," it says "or" -- "any construction, modification, dismantling or abandonment that, at the coming into force of this section...." Presumably, those that are currently underway fall under the following acts. Maybe the minister can clarify that on the record.
Hon. A. Edwards: It does not include any project that, "at the coming into force of this section, has been started," and is not already under review processes. If it has already been started.... That is what it is talking about. These that are defined will already be under processes. I understand your confusion. It took me three times to read it myself.
G. Wilson: I hear what the minister is saying, and that is what I thought it meant when I first read it. But then surely it should read "has been started and is a regulated project under the Utilities Commission Act," -- not "and is neither." Because what you are saying is that these projects are not included. Surely it should say that it has been started or is a regulated project; it is one that is already regulated. So what is the "neither" doing in there?
[11:45]
Hon. A. Edwards: The projects defined under (d)(ii) are ones that will already be under a process. They will have been started, and there are provisions under the act for a transition to move them into this process if that is appropriate. Those that are begun but have not been under a process will not be included under this legislation. Those that have been under another process may well be moved into this legislation. As I understand it, that's what the interpretation says.
G. Wilson: What I'm hearing the minister say is that if an operation has been permitted without environmental review under any process and has already started, then they may continue exempt from this process. Is that what the minister is saying?
Hon. J. Cashore: I wonder if I could suggest to the hon. member that he review the wording in section 91. I realize that he may not have time to do it right now, but if he could hold further questioning on this until we deal with section 91, which is the transitional section that applies the definition, he would not lose the opportunity to discuss this further.
G. Wilson: Fair enough. It looks like that section might in fact clarify it somewhat, but I still think that the "neither...nor" is misplaced in its language. I won't get into the nuances of what is meant here as long as the understanding is clear that in this definition section we're saying that projects which were started without regulation or subject to any environmental assessment will not now be subjected to this act. That's what I think this section is trying to say. Is that correct?
Hon. J. Cashore: That's correct.
G. Wilson: Okay, fair enough. Then could we talk for a moment about what constitutes "started"? Is the filing of an application enough to have started a project, or does it mean that you have to actually have broken ground and taken something out of the ground? Do you have to have your permit in place? Where in the process, from the filing of an application to when you actually commence, do you determine that it has started?
Hon. J. Cashore: In the instance where a prospectus has been filed under the current major project review process.
G. Wilson: That brings me back to my problem, because this language says that we're dealing with those that are not subject to the major review process. How do you know when it has commenced? That's my point. What's the definition of "started"? This says that those are the projects that have not been under that review process. So my question is: when do you know that it has started?
Hon. J. Cashore: I was incorrect in my reference to the prospectus in the answer that I gave to the previous question. It's my understanding that if it has been started, it is under construction.
G. Wilson: When you say it is under construction, does that mean that you have actually broken ground, and you have gone in and put a road to the site? Does it mean that you have done preliminary clearing? Does it mean you have drilled a test hole? When is the project constituted as having started? When the person has an idea and says, "This is what I'd like to do," is that when they have started it?
Hon. J. Cashore: These projects would not have been approved under the three processes that are referred to generally -- the mine process, the energy process and the major project review process. They would have been approved under the other existing
[ Page 8262 ]
processes in which other projects in the province are currently dealt with.
C. Serwa: For clarification on that very important issue, would the minister indicate that a project is deemed to have started construction once all of the permits and necessary approvals have been received? Would that be the satisfactory...?
Hon. J. Cashore: I'd like to thank the hon. member; that helps to clarify. The answer is yes.
G. Wilson: The minister talks about other processes. The reason I raise this issue is that this is going to be very contentious on certain land use developments where a permitting process that may have occurred through a municipal jurisdiction may have been commenced through an application for development permit. Because the application has been filed, does that mean they are essentially in under the wire? The application may not have been approved. There is a series of approving agencies that have to say yes or no. I know this because I've dealt with it firsthand. I know the complexity, and I know the potential legal problems that come out of it when somebody says: "You've changed the rules after I've started." The question is: when have they started? This is a really important point. Is it from the time they made application, is it from the time that that application has been heard, or is it from the time it's been approved and some kind of authority is provided? This is an important point that will cause legal problems. I know; I've been there.
Hon. J. Cashore: It's the time the project has been approved. It is approved, therefore it is subject to proceeding with development.
G. Wilson: So "been started" means by the time there has been an approval of the application. I think the record will stand clear on that, because that is a very important point. It means that people can't simply file an intention through a development project plan and expect they can get in under the wire, and that's good. If this government, in its wisdom, would use Bamberton as an example, that may still be subject to this process, because it has not yet been approved, despite the fact that the application is well underway. It is good to hear that.
If we could move on to the reviewable project under section 1, you say that the definition of a reviewable project means a project that is within a category of projects described under section 3 -- but section 3 says the Lieutenant-Governor-in-Council may make regulations prescribing what constitutes a reviewable project, though he doesn't say what they are -- or, it says, "that is designated by the minister under section 4." Section 4 says that the minister, by order, may designate a project a reviewable project -- even though it doesn't constitute a reviewable project under the regulations -- if the minister is satisfied that the project has or may have a significant adverse effect and that that designation is in the public interest. So basically a reviewable project can be anything at all that the minister deems is warranted. Is that right -- with the exception of those not under some other form of process, given the double negative?
Hon. J. Cashore: The short answer is yes, but there are procedures once that project is brought into the process. There are checks and balances. The real purpose of this definition is to make sure that we avoid double jeopardy to the proponent, so that they don't have to go through the hoops all over again. That's really the simple purpose of this definition and its application in, I think, section 4.
G. Wilson: Okay, we'll take yes as the answer.
In (a) and (b) under the definition of "reviewable project," what is the purpose of designating the main site but allowing off-site facilities to be at the discretion of the executive director? Why would you not simply designate any facilities at the main site or off-site? How do you designate the main site as opposed to off-site facilities? What characteristic would define that?
Hon. J. Cashore: We need some discretion there because there could be some very small ancillary roads that aren't really subject to this act. It is put there so that we aren't requiring a process where it's not necessary.
C. Serwa: I just want to confirm this. This process will be dedicated to major project works rather than activities. We can define the major project review process or the Environmental Assessment Act under the project to major capital-type works -- physical activities rather than other types of activities?
Hon. J. Cashore: The answer is yes.
G. Wilson: There are a few more questions under this section, but noting the hour, I would move that the committee rise, report considerable 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.
Hon. J. Cashore moved adjournment of the House.
Motion approved.
The House adjourned at 11:57 a.m.
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