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)
MONDAY, JULY 19, 1993
Afternoon Sitting
Volume 12, Number 10
[ Page 8865 ]
The House met at 2:05 p.m.
Prayers.
U. Dosanjh: I have the privilege of introducing four friends to the House today: Amar Bains and his spouse, Harpal Bains, who live in Langley; and with them are Kirpal Singh Libra and Surinder Kaur Libra. Kirpal Singh Libra is a former member of the Punjab legislative assembly. He is visiting us in British Columbia. May the House please welcome them.
CLAYOQUOT SOUND DECISION
W. Hurd: My question is to the Premier. The provincial ombudsman last week initiated her own investigation of the Clayoquot decision, marking the second time in as many months the government has been investigated for its decision on Clayoquot Sound. One of her chief concerns is the deliberate omission of the CORE process from the Clayoquot decision. Is the Premier prepared to admit today that he made a mistake in failing to acknowledge that the CORE process had any role to play in Clayoquot Sound?
Hon. M. Harcourt: Hon. Speaker, I answered that question last week.
W. Hurd: While the ombudsman has indicated her concern with the process, people are being arrested in Clayoquot Sound and tried for criminal offences instead of civil offences. My question to the Premier is: how can he defend arresting children and jailing protesters when the ombudsman of this province has expressed concern about the process of his government?
Hon. M. Harcourt: I'm sure the member is aware that the RCMP and the administration of justice are separate from the legislative branch, that the RCMP are dealing with people who are consciously deciding to disobey the law and in the tradition of civil disobedience are now taking the consequences of that decision, and that the RCMP and the courts are dealing with the due process of law. We are still governed by the process of law in this country of ours.
B.C. RAIL LABOUR DISPUTE
L. Stephens: My question is to the Minister of Economic Development. The impending threat of a full strike at B.C. Rail is forcing many of our northern community businesses to find alternative means of getting their goods to market. This is very costly and time-consuming. What has the minister done to alleviate this cost and disruption to these northern businesses?
Hon. D. Zirnhelt: The individual businesses are welcome to come to us. If it's serious, we can assist them through the job protection commissioner. Otherwise, I have prevailed upon the minister responsible for B.C. Rail to do everything he can to avert a strike.
L. Stephens: This B.C. Rail dispute is another nail in the coffin of northern business. Their suffering, as I am sure all members on this side of the House know.... I would like to know how this minister is standing up for B.C. business in cabinet and standing up to the labour unions and telling them that this 7.5 percent wage demand is outrageous.
The Speaker: The hon. member will appreciate that the confidentiality of cabinet does not allow the minister to answer that portion of the question, but the minister may address the other portion of the question.
Hon. D. Zirnhelt: There is no question that I have made my views known to the minister responsible for B.C. Rail and the Minister of Labour about the importance of the regional economies. They understand, and they make their concerns known to the management of B.C. Rail.
POLLING AND PREMIER'S POPULARITY
J. Weisgerber: My question is to the Premier. According to the Angus Reid poll, only 23 percent of British Columbians approve of the Premier's performance -- the lowest rating of any Premier in British Columbia history. I suppose that the Premier can take some comfort in the fact that he's still five times more popular than Audrey McLaughlin. Can the Premier tell us if the Angus Reid numbers are consistent with the recent polls commissioned by his government?
Hon. M. Harcourt: I think the member is aware that in politics there are peaks and valleys, and that sometimes you're up and sometimes you're down. I can say that in over 20 years of politics, I have had some peaks and some valleys.
J. Weisgerber: The Premier has not confirmed whether recent polls done by the government have confirmed those numbers or not. Will the Premier release any polls recently taken by the government? Will he further commit to release polls paid for by taxpayers' dollars as soon as those poll results are made available to the government?
Hon. M. Harcourt: The Leader of the Third Party was part of a government at one time that had an opportunity to bring in freedom-of-information laws and refused to do that. I find it ironic that he's now requesting access under the first freedom-of-information law in this province's history under which he can access that information.
J. Weisgerber: Supplementary to the Premier. This fall the Premier plans to spend thousands of taxpayers' dollars travelling around British Columbia, campaigning for the federal NDP. Has he also decided that he should question taxpayers to decide whether or
[ Page 8866 ]
not they approve of his plan to campaign around British Columbia this fall in support of Audrey McLaughlin?
Hon. M. Harcourt: Hon. Speaker, the Leader of the Third Party is drifting off further and further from the purpose of question period. But if he's asking whether as the Premier of British Columbia I'm going to be out in the grass roots among the people of British Columbia this fall, talking about the tough decisions this government has had the courage to make, yes, I am.
PREMIER AND B.C. SUMMER GAMES
R. Chisholm: Maybe the Premier should get out to the Summer Games. The B.C. Summer Games are opening this Thursday, and the Premier has declined the invitation to host his own Premier's reception. Does the Premier think it is appropriate for the Premier to take the political credit for the event and then boycott it?
Hon. M. Harcourt: I have spoken with the hon. member for Chilliwack about my attendance at the Chilliwack games. The games are going to be very successful. The Minister of Municipal Affairs, Recreation and Housing is going to be there. The Premier is going to be attending the people's business in the Legislature, to make sure that it is working on important issues for the people of British Columbia.
[2:15]
R. Chisholm: Maybe his popularity would be better if he started participating in these provincial functions. As of June 1, the Premier's popularity was at 23 percent -- and rapidly declining. Even Elvis Presley has 18 percent, and he's dead.
The Speaker: Your question, hon. member.
R. Chisholm: What is the Premier's strategy to improve this?
The Speaker: I would caution hon. members that the Chair is trying to be flexible today; however, members are reminded that questions must relate to the ministerial responsibility of the minister they are addressing.
PREMIER'S PROVINCIAL TOUR
A. Cowie: My question is to the Premier. Can the Premier inform the taxpayers of this province how much his tour around the province this fall to bolster his low image will cost?
Hon. M. Harcourt: It's not going to cost any more than it has in the past for a Premier to be among the people of British Columbia, dealing with the tough decisions we have had to make. I can say that it's going to cost a heck of a lot less than the member for Vancouver-Quilchena constantly rehearsing for some role in a Gordon Campbell-led opposition party.
A. Cowie: It doesn't take a lot of rehearsing.
The people of this province have no faith in this government. The Premier has already stated that he's not in control of the government. The last thing the taxpaying public needs is another useless PR exercise touring the province. Can the Premier confirm that he has hired a new image consultant -- Mr. Bill Vander Zalm -- and at what cost?
ALTERNATIVE ENERGY SOURCES
R. Neufeld: My question is to the Premier today, too. I guess it's your turn in the hot seat, hon. Premier.
The Premier's statement regarding negotiations with Alcan revealed just how dependent the province has become on electricity from Kemano. In view of this disturbing dependency, has the Premier decided to reinstate the former government's policies that supported alternative sources of independent power to meet our growing domestic needs?
Hon. M. Harcourt: I would hope that the member would have more confidence in British Columbia, which has the most varied and accessible sources of energy of any of the Canadian provinces -- or, as a matter of fact, of any jurisdiction in North America. We have access to other B.C. Hydro projects that could go ahead throughout the Kootenays. We have cogeneration projects that could go ahead in many jurisdictions throughout this province, and in the member's riding we have access to one of the great sources of natural gas. I'm sure the hon. member is aware of the tremendous new drilling that's taking place in the Peace. We are blessed with many alternative sources of energy, and that's why I made the statement I did about our situation with Alcan.
R. Neufeld: It's obvious by the answer that we are in a bit of a tighter crunch than the Premier is letting the province know. But a premium of up to 25 percent on electricity generated by wood waste would eliminate the use of beehive burners. This policy would require hydro rate increases of less than 1 percent and would substantially reduce Hydro's dependency on Kemano. Why did the government kill this environmentally friendly policy that could now be contributing to the province's generating capacity?
Hon. M. Harcourt: We not only haven't killed it, we're looking at a number of those excellent proposa1s that, as the hon. member has said, allow wood waste to be burned in an environmentally acceptable way -- to get rid of the fly ash problem, for example. I agreed with the actions of the previous government and supported those of the cogeneration plant in Williams Lake that have not only produced more power but have also gotten rid of a fly ash problem, taking care of a social and environmental problem that that community faced. There are others from the private sector that could go ahead, and we are looking at those proposals at this moment.
The Speaker: Final supplemental, hon. member.
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R. Neufeld: There are numerous applications for independent hydro and thermal projects that could also supplement our domestic energy needs. What steps has the Premier taken to expedite those applications, in view of the concerns raised by the Premier last week about Kemano?
Hon. M. Harcourt: First of all, they weren't concerns; they were laying the record clear for the people of British Columbia and asking the appropriate ministers to clear with Alcan, in 30 days, exactly what they're proposing to do. I have made it absolutely crystal clear that British Columbia has not only more energy sources but also more potential for increasing our energy than any other jurisdiction in North America.
TAX ON LEGAL SERVICES
A. Warnke: My question is also for the Premier. In response to the lawyers' launch of a fresh court challenge to the B.C. tax on legal services, the Premier's Minister of Finance said: "If they find a loophole, then we'll bring in a further legislation next year to close that loophole. I'm puzzled why the Law Society would spend hundreds of thousands of dollars on court fees when they know the government is determined to proceed on this issue." Has the Premier told his Minister of Finance that to waste the time and the money of the public and of the courts and to show contempt for the courts and the legal process is simply not on?
The Speaker: The bell signals the end of question period.
Hon. R. Blencoe: I call committee on Bill 32.
ENVIRONMENTAL ASSESSMENT ACT
(continued)
The House in committee on Bill 32; E. Barnes in the chair.
On section 4.
A. Warnke: I just want some clarification at the outset as to whether we are on section 4 or have passed sections 1 through 3. We have passed sections 1 through 3, is that right?
The Chair: Yes, we have, hon. member.
A. Warnke: We are on section 4? Thank you, hon. Chair. This particular section suggests that the minister may designate a project as a "reviewable project." The term reviewable project has been used in different ways here. In the context of section 1, a reviewable project is further defined, so I think we have canvassed that at length. But by the same token, in the context of this particular section, I would like to ask the minister what the nature of this section is as it relates to the concept of reviewable project.
Hon. J. Cashore: The projects will be defined as being reviewable pursuant to the regulations that are going to be developed over the next year. It is true, however, that in the course of events there are projects that are happening for the first time ever, and there are projects that, because of particular circumstances, require the ability to be brought into the environmental assessment process because of the public interest with regard to potential impacts that could result from that project.
I would point out that this provision exists in virtually all the other environmental assessment acts that have come into being in Canada in the last few years. It is a clause that is not used very often, but it is there as insurance to make certain that projects that have not yet been defined, or because of special circumstances require review, would come forward for review. Once a project comes forward it would be subject to the same process as outlined in the act, which would include the first phase where a high percentage of those processes would come in and go out in the first phase. But it would be subject to the scope of this legislation.
A. Warnke: I appreciate the answer given by the minister. I guess what confused me at the outset is that the minister "may designate a project as a reviewable project, even though it does not constitute a reviewable project...." In my mind, the language seemed to create some inconsistency. The latter part of that particular section says "...the project has or may have a significant adverse effect and that the designation is in the public interest." I am wondering if the minister could outline what constitutes the elements of what may be considered to be "in the public interest," and how the minister would go about making an assessment as to the significant adverse effect on a project.
Hon. J. Cashore: It would be projects with a similar potential environmental impact, or other impacts, as would be the case with the projects listed in the regulation. Projects similar to those in the backgrounder would have obvious potential impacts. The purpose of this is to protect the public and to make sure we are in a position to deal with a potentially bad impact. It's there as a precaution. As I said before, it exists in virtually all other environmental assessment legislation. It's a very standard type of provision. It is there to ensure that we are protecting the public interest.
[2:30]
V. Anderson: A member across the hall says that it's an insurance policy. But in an insurance policy some categories are written in, and you know what the policy is for. This is a blank insurance policy, and therefore there is some concern.
Looking at the definition of a reviewable project in section 3, the minister says that the regulations will then come from Lieutenant-Governor-in-Council, so
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there is an open-endedness in dealing with it at that point. In section 4 it says that even the minister, I presume, has input to the Lieutenant-Governor-in-Council in making regulations. If the Lieutenant-Governor-in-Council were to make regulations and adopt only some of the regulations that the minister has suggested, the minister still has a blank cheque over and above the Lieutenant-Governor-in-Council to put his own regulations into effect. Why would the minister not go back to the Lieutenant-Governor-in-Council for a change or an addition in regulations rather than doing that on his own?
Hon. J. Cashore: In this circumstance, we want the ability to review a type of project, but not necessarily all projects in that category It wouldn't be necessary in some instances.
If a new genre of project was coming on stream, then the hon. member makes a good point. In due course you could arrange for an amendment to the regulation. But in the meantime you need to be able to act, because you need to be able to operate in the public interest by being able to make timely decisions. As I said before, this is a standard process; it is not a blank cheque. A blank cheque, in my view, would have a direct impact on that proponent and would give the minister unlimited powers with regard to that proponent. The only power here is to bring it into a process which is fair, and in which a very large number of projects are in and out during the first phase.
D. Jarvis: On that premise, I assume that you feel you will be in a neutral position. I have a feeling -- and I've had many people contact me -- that if you have the power to designate what environmental project may be entitled to go before the review board, that's not putting you in a neutral position. Do you want to elaborate on that, sir?
Hon. J. Cashore: I don't think the question of neutral position is really operative in this issue. This is an Environmental Assessment Act. It's brought in in the recognition that it's in the public interest. I believe it's in the public interest, as outlined in the election platform of the official opposition, that there should a single-window environmental assessment process.
The question of neutrality comes in with regard to the way in which the process would be operated. I am not apologetic at all in pointing out that this has a high degree of neutrality built into it, given that you can never have a completely neutral process because you have to have decision-makers making decisions. Those decisions do come back to cabinet eventually.
With regard to the power to bring a project in, this power has been put in place by the Conservative governments in Alberta and in Manitoba, by governments in the Maritimes and by the government of Canada. It's very standard material. I also point out that this power is very similar to the power that presently exists under the Mine Development Assessment Act and the Energy Council Act in this province, where the minister responsible in that case, the Minister of Energy, Mines and Petroleum Resources, presently has that power with regard to energy and mining projects.
V. Anderson: Almost any business or organization planning to develop a project of any kind within the province now has some kind of environmental concern. What kind of guidelines or assurance can a business have, once they begin to develop their project and are well on their way, that their project is not going to be scuttled? If they go according to the regulations once they're in effect, then normally once you read those regulations you would be able to say: "I meet all those standards; therefore I'm free to go ahead because I've met the regulations." But under this process -- no matter what research they do -- unless they go to the minister at the very beginning and say: "Sir, can I have approval to go ahead?" then they're into the process, have spent their money and done their research, and they are cut off at the pass. There's absolutely no assurance for developing anything, when the regulations themselves don't give you a guideline as to what you can develop within the province.
Hon. J. Cashore: The hon. member is back onto some of the earlier sections, where we dealt with the issue of making regulations. There will be opportunity in further sections to deal with that question more specifically.
The fact is, hon. member, that regulations are part and parcel of virtually every environmental assessment act. I would point out that the section of the Alberta act that was read into the record by the member for Powell River-Sunshine Coast is very similar to another section in our act, which does not outline the reviewable projects but does outline the process for defining what those reviewable projects are. While he was purporting to read out a list of reviewable projects, he was not doing so. I would urge you to look in Hansard to see where he said specific projects were outlined. This is standard with regard to the way the projects are defined.
This process provides assurance to the business person that was not there heretofore, because the regulation that is required by the legislation, after a process of consultation with those businesses, will define exactly how we should proceed and how those time lines will be in place. I believe that the concern being expressed is not a correct one.
Also, I would encourage the hon. member to clarify whether or not it is the position of the opposition that we should have this loophole, whereby some projects that should be reviewed in the public interest would not be reviewed. I think it's very important that we not have that loophole and that we have a means of ensuring that those projects are reviewed.
V. Anderson: To respond to that, the minister has indicated loopholes, and that's exactly the concern: loopholes in both directions. Two questions come up. If the minister makes this judgment outside the regulations, is that appealable and to whom? If the minister is making regulations beyond the regulations, does he have a community committee or someone to
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report to, so that it's not just at the minister's whim? We might trust the present minister, but there are going to be many ministers in the future. We're concerned about whether there is some protection if the minister doesn't happen to be objective in this undertaking. Is there some place where you can appeal it because it is outside the regulations? How can a person deal with it when there's no process?
Hon. J. Cashore: The answer is very clear. The process is the first loop in the process that we would be entering into. If the minister had been mistaken and it was not in the public interest, it would then be up to the advice of the project committee. The hon. member talks about having a committee to refer to. As a matter of fact, this project committee is defined in the legislation.
As I say, when that project is brought into the process, it goes through the first loop; the vast majority would be in and out at that stage -- "out" meaning that they would have their approval certificate to proceed. Some of them possibly could be rejected outright at that stage if that was the advice of the project committee. If that was the case, it would be exactly such an instrument as the hon. member is referring to. That project committee would be a legislated instrument.
C. Serwa: After looking at section 4, it would certainly be wise for the minister to consider withdrawing it. It's one of those little sections that appear to be inoffensive, but the power and potential for the unprincipled abuse of power is contained entirely within this section. Clearly, as I said before on section 3, cabinet can by regulation designate a class or kind, so there is no limitation. This is a fairly standard and easy procedure done in OIC and, as a matter of fact, it may be repealed in the same manner by OIC. I draw very little comfort from the minister's remarks when he says that other jurisdictions have virtually the identical clause. Whether they have or not is beyond my knowledge, but I'm confident that they do not have that in the context and the framework of this particular legislative package. Here we have a policy where obviously cabinet, the executive branch, can bring in a defined project by regulation. This reviewable project designation is a critical issue.
What we're seeing in this particular section is the potential for independent or unbridled abuse by the minister or the ministry on the basis of a threat. When the minister indicates that one type or group could be identified for an independent environmental assessment review, I can clearly see the fine hand of this arrogant government in that statement. They will utilize that through threats and coercion to force some sort of compliance, whatever it may be. It may be for the good -- an environmental concern that they have -- or it may be for compliance in some other facet of their operation, but that power is clearly within this section. It's not necessary; it's not required. I think the minister knows and understands that full well. Again, I'm not comforted by the other jurisdictions he referred to, because I'm not convinced that the wording is exactly the same or that the context in the framework of the legislation is required to allow that type of latitude.
Hon. J. Cashore: The hon. member says that he's not comforted by the other jurisdictions referred to. I would ask him to consider being comforted by his own jurisdiction, and to remember the time when he was Minister of Environment and was responsible for administering the Environment Management Act. There is a virtually identical clause within the Environment Management Act that gave this hon. member when he was the minister the very power he is now condemning. This is a very serious point. Section 3 of the Environment Management Act says:
"Where the minister considers that a person proposes to do anything that would have a detrimental environmental impact, and that the environmental impact cannot be assessed from information available to the minister, he may require the person to supply an environmental impact assessment in respect of that thing, prepared in accordance with the regulations."
So here is a power that this member had when he was the minister, which has existed only during the time of the Social Credit jurisdiction. At this point I'm not going to engage in the kind of rhetoric that I hope isn't going to creep into this discussion, because I really don't think it's an issue of draconian governments and that kind of language. In fact, I'll state very charitably that it was not abused when that member's party was in power. It would not be abused, because very seldom would there be the type of situation where it would be required.
[2:45]
I would point out also that in the present Mine Development Assessment there is a clause that has virtually the same power. It enables a project to be brought in that isn't defined in the regulations. The Utilities Commission Act has an enabling power to bring in a project that isn't defined -- albeit some of the processes are somewhat different, but there is a means of bringing in an undefined project. Again, that was possible through the major project review process, which was another instrument of the previous government. As I've said before, I believe this hon. member was very active in that process at that time.
Going on to other jurisdictions, let's remember that in Alberta there are two provisions for bringing in undefined projects. One is by a senior bureaucrat in section 41:
"Where the director [of environmental assessment] is of the opinion that the potential environmental impacts of a proposed activity warrant consideration under the environmental assessment process, the director may by notice in writing to the proponent advise the proponent that the proposed activity must be dealt with under section 42."
In section 45, the minister is given that power as well. So in Alberta that power is given to a senior bureaucrat and also to the minister.
In Manitoba, it says: "Where there is a disagreement as to whether any project, industry, operation or activity, or any alteration or expansion thereof is a development [and therefore subject to environmental assessment], the matter shall be determined by the minister."
My point, hon. member, is that this clause is very clearly in the public interest, which is to enable bringing
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in a project that is otherwise not defined. I think the member for Vancouver-Langara asks a very good question: "What are the checks and balances to make sure that this power isn't entirely in the minister's hands?" The answer is: the legislated project committee that kicks in at the first phase of the environmental assessment process. Once that project has been brought in, that is the instrument that enables the process to take place. So once it's brought in, it is only subject to the process that's being outlined and discussed within this act.
L. Hanson: Hon. Chair, with your indulgence -- because I think it is very important to this section -- I would like to refer to the purpose of the act which says that it is "to provide for the thorough, timely and integrated assessment of the environmental, economic, social, cultural and heritage effects of reviewable projects." I suspect that means that any or all of those could be considered in a project that should be reviewed.
Through the process of order-in-council and regulations, it is understandable that those considering any kind of project will have some indication of whether it is or isn't reviewable. But section 4 seems to say, despite the description in the purpose section of the act and despite the regulations that outline the categories of reviewable projects, that "if the minister is satisfied that the project has or may have a significant adverse effect" -- it doesn't say on what; it just says that it might have a significant adverse effect -- and if "the designation is in the public interest," he can order it to be reviewable. That seems to make the information as to purpose and the information in regulations totally over-ordered in the hands of the minister by this section of the bill.
Hon. J. Cashore: I think I have answered that question a number of times. I'll just say once more that it's in the public interest. I would assume that hon. members would agree that it's in the public interest that a project should not go forward simply because it isn't named in regulation and that it could be in the public interest for various kinds of purposes but primarily environmental considerations. If a project was to go forward and ended up contaminating the water supply of your constituents, and the only reason was that there was a loophole because it wasn't described in regulation, the hon. member would be the first to express deep concern about it -- and so he should.
As I have said, this enables bringing a project into the process, but at the point at which it's brought in, the process itself has checks and balances. The very first stage of that process is what we are referring to as phase one, where the project committee works to assess whether or not this project requires going to yet another stage. It is not the type of thing that means a proponent's project is suddenly taken away and put into endless process; it would mean that it was subject to the process being outlined in this act. The feedback from the business community, through the consultative process conducted by the member for Nanaimo, was that they don't mind an Environmental Assessment Act -- they think we need one -- but they want to know where they stand. The industry has been clearly aware of this section. They are fully aware that this is a power provided in the other environmental assessment acts in Canada. As I pointed out -- and I want to re-emphasize this -- the hon. member's colleague, who is a former Minister of Environment, had virtually that same power under the Environment Management Act. That power was not abused, but it was there in case it was necessary -- and so it should have been.
C. Serwa: The power was not as broad or as expansive, and the minister is quite correct that it was never abused. I'm going to bring an example into this debate to express my particular concern -- not with the minister or the ministry, because I have the highest confidence in both -- about the attitude of the government of the day that the end justifies any means.
The case I want to bring in to illustrate my specific concerns on section 4 involves the Minister of Agriculture and the village of Osoyoos. A short while ago two properties apparently owned by the railway were coming up for tender, and because of the cost, the village didn't want to bid on them. An independent owner bid on those two properties. Subsequently, the village decided that they would like to utilize one of the properties for a park. The minister counselled the community and the mayor to withhold rezoning on the other one to force the developer to give up the second parcel that they had purchased through legitimate channels. This can be checked on. It has been recorded in newspapers, and there are the words of the Minister of Agriculture. What I'm concerned about is the unprincipled and unbridled arrogance in the utilization of this type of act, where any means can be justified by the end. That is the aspect that concerns me. The minister already has the opportunity through cabinet. Hon. Chair, you and all the rest of us are comforted when the larger group has the opportunity to participate in the decision. The mechanics of that larger group are not any more difficult; cabinet meets once weekly, and regulations can be drafted as quickly and as sensitively as required. Cabinet has that option and ability. I would personally have far more comfort in the stability of that type of decision, because with this latitude in section 4, I see the opportunity for a random, impulsive or arbitrary decision to be made on the counselling that may sway one individual quite readily, without the prudent advice of, for example, the minister's colleagues. The only constant in government is change, and we may have a new Minister of Environment after the cabinet shuffle. I don't know that, but I would probably have less confidence in other members than in the present minister. I am concerned about that type of arbitrary, impulsive decision-making being granted to one individual, when the mechanics and the time element in section 3 no longer conform or comply because regulations can be drawn up. As the minister points out, if it is not necessary, then they can be very quickly repealed. That is clearly evident, and the power and the authority are there. This one leads to a substantial potential for abuse of the power. The power is much greater than ever before, and it can be utilized, as I said, in threats or coercion to business or
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an industry that has proceeded in good faith -- not as a reviewable industry, for example -- and all of a sudden it is caught in the complexities.
D. Lovick: Do you think the project review committee won't see that? Do you think the public won't see that?
C. Serwa: I listened to the hon. member's remarks. I see a great deal of insensitivity in the realities of the world, where time is money. You can have interim financing only for a certain period of time, and you have to pay interest on the money. You have to work with suppliers and get everything on line. There is a completely coordinated plan of a very complex series of events that have to take place until you get an industry into proper production. I am concerned about the jobs in the province. The reality is that this type of legislation can do nothing but hinder, by setting up potential roadblocks. It doesn't take any more than that to shake the confidence of potential investors in the province of British Columbia. Surely the licence granted under section 3 is more than adequate to address any concern put forward by the hon. minister in section 4. Those are some of my concerns on this section, and I would appreciate a response from the minister.
Hon. J. Cashore: I don't think there is much point in going over this again and again. I have pointed out that it is in the public interest to have the ability to bring in a project that might in fact be harmful to the constituents of the hon. member who has just spoken. In doing so, there is a check and balance in the first phase. The project committee would review whether or not this project should be subject to a further review stage. That would be a very time-limited process, and it would not take a long time.
I think it should be pointed out that in most instances, the industry itself would be asking the government to give it the benefit of this process, so that that industry would know what the expectation was. This would not be random or impulsive. Apart from the points that the hon. member makes, the fact of the matter is that any minister who goes about making decisions that are contrary to the corporate interest of the government -- to their colleagues in cabinet, if you will -- is obviously going to be dealt with one way or another. That is the way our parliamentary democracy works. Therefore there is a check and balance right in that part of the process as well.
Another check and balance on the part of these processes is that we are judged by the way in which we administer the acts that we are responsible for. I don't think any member of the House would stand up and argue that we want to leave a loophole that would allow certain projects to go ahead where there is a potential for them to have a deleterious effect on their own constituency, for instance.
C. Serwa: As I said at the start, section 4 is an incredibly important section. It may look innocuous, but the minister hasn't indicated one valid reason for it being here. The differential in the time element, for example.... With most projects that come onstream, there is a substantial amount of time for the information to come out. Using the options under section 3 or section 4, the time element is immaterial. I can see no advantage for section 4 whatsoever, and I'm concerned about it. In his comments a few minutes ago, the minister indicated that the concern and the opinion of his caucus colleagues would come to the fore if a decision was made that didn't satisfy them. Because of the requirement for solidarity of cabinet, the reality is that whether the decision was good, bad or indifferent, it requires the support of cabinet. There's no question about that; we're all aware of it.
[3:00]
An arbitrary or impulsive decision or a decision made on less than the full spectrum of objective facts, once initiated, is simply not reversible. If the minister is confident of the support of his caucus colleagues, it seems to me that we have the mechanism already. The time element has to be a critical issue, and the minister hasn't indicated that it's more expeditious to go along the parameters of section 4. There has been no substance enunciated that will support section 4, other than the reality that other jurisdictions have accepted section 4, and that it's contained in Alberta, Manitoba and federal legislation. I have not been informed of the real substance for including those comments in this section. I have to be satisfied that there is more than: "Well, others have done it, and if they've gotten away with it, then what's good for the goose is good for the gander." Surely this legislation is drafted on the basis of substance and not simply what others have done.
Hon. J. Cashore: With all respect, I have answered that question, and I have invited the hon. member to say if he is advocating that there be a loophole there and that there be the possibility that a project could go through, even if it's a cause for potential environmental concern, simply because it didn't happen to be on a list. If he is advocating that, he should say that very clearly. I have given him the substance of the reason, and that is a potential deleterious effect on his constituents, my constituents or the constituents of any member of this assembly. That is a very valid reason to ensure that there isn't a loophole that would mean a project that should be subject to review would not be.
The hon. member refers to time lines. I have answered that also, in saying that it would be subject to the time lines as outlined in the regulation pursuant to the various phases of the act. As I said before, in most instances it would be dealt with in the first phase. I have dealt with the questions that the hon. member has raised. Perhaps we just agree to disagree on some of these points.
The Chair: Before recognizing the hon. member, I would like to caution the committee that since we started the debate on section 4, the Chair has listened carefully for any indication that members have not committed the violation under standing orders of
[ Page 8872 ]
becoming tedious and repetitious over canvassing a matter which clearly has been exhausted.
I would ask the member for Okanagan West to keep in mind that we are not in second reading. We are in committee, dealing with the wording of sections, not the principle of the bill.
C. Serwa: Hon. Chair, I am confident that you have been listening very closely. I'm not quite as confident that the Minister of Environment has been listening as closely as you have. The Minister of Environment just made a statement that I am advocating a loophole. I can no more accept that than I could accept that the minister himself would advocate a loophole. I am not going to do that.
The issue before us is apolitical, as far as I am concerned. But the concern has to be with what is appropriate. It has to be fair, well-reasoned and balanced. The reality is that the mechanism does exist, and the minister does not require the power authorized under section 4. I think the minister has to concede this; I think he has conceded it to a degree. The only validity for this is with respect to the concept of the loophole. Perhaps the minister can explain how he or the ministry or the Minister of Environment can catch hold of a loophole that escapes the minister and the entire cabinet. I fail to understand that.
V. Anderson: The minister raises the point that this is an environmental review, but I think he misses the point. The purposes include economic, social, cultural and heritage review. One of the reasons we feel that there should be a reference here to the Lieutenant-Governor-in-Council is that the minister is also responsible for those parts of the review that would be involved. What we have here is a business review of their cultural, economic, social and heritage effects. I want to make sure that the minister is aware of the nature of the concern. What they have said is that after one has read the act and the regulations that are in effect, it is then incumbent upon every business, in developing a business plan -- no matter how insignificant the business might be -- to have gone through the ten stages of section 8 that the minister has referred to, and to have them in place to deal with the cultural, social, heritage, economic and environmental effects. Having this authority, the minister stresses the point that it is a business plan assessment; it is not an environmental plan assessment per se. That is why the concern is so great that it does not go back to the Lieutenant-Governor-in-Council. If section 4 were simply to say that the minister may be able to refer this decision to the Lieutenant-Governor-in-Council for him to act on it, that would solve our problem.
Hon. J. Cashore: There would be a mix of expertise on the project committee. That is where you would find the balance.
W. Hurd: I just want to explore the circumstances under which a project which didn't meet the regulations might be referred to the minister. Assume that a company had its financing in place, was accruing considerable expense in terms of pre-project planning and had received some sort of indication that the project wouldn't constitute a reviewable project under regulations. Is the minister now suggesting that in the unlikely event that a third party intervenes and expresses concern about this project, the company should be seeking some sort of information from the minister as to whether or not they might have a project that doesn't fit the regulations? Because of intervention by a concerned environmental group or a wildlife organization or anything else, may the company find itself having to submit to a review ordered by the minister?
Hon. J. Cashore: If the project is well designed and implemented, there would be no reason whatsoever for it to be brought into this process.
W. Hurd: I think the issue I am trying to raise here is one of investment by the company, and the fact that considerable work goes into a project which might have environmental significance. I'm asking whether third-party intervention, pointing some issues out to the minister, might result in this project being reviewed, when the company had made the investment with the information or assumption that under the regulations it wasn't a reviewable project. This is an important point, because we've already dealt with a bill in this House that specifically exempted appeals to cabinet when it comes to such issues as the agricultural land reserve and others. My concern is whether a third party, by launching a complaint or expressing a concern, could trigger a decision by the minister to order a review
Hon. J. Cashore: As I said, if the project is well designed and well implemented, it's not likely. But let's just put a hypothetical situation out there. If the hon. member was administering the act and had that responsibility, and if this hypothetical third party came forward with something that gave this hon. member in that role the knowledge that yes there was a serious consideration here in the public interest that had been missed, in that hypothetical situation I think the hon. member would say yes, we'd better protect the public interest by making sure that the appropriate environmental review is done. I'm saying that that's very unlikely, given that in most circumstances adding a well-designed, well-implemented project that is not on the list to the process would not even be considered. But in that hypothetical instance, where one who has that decision-making responsibility finds out that yes, there is a serious concern here in the public interest, then in that instance presumably that's a possibility.
But let us remember how I responded to the question of the member for Vancouver-Langara. He said that there should be a committee and a process that the minister can refer to. The existence of the committee is legislated right into the legislation; it would be the next body that would have to deal with that.
W. Hurd: I really fail to understand how that's going to allay the concerns of a company that might be proceeding with what it considers to be one set of rules.
[ Page 8873 ]
It may engender a situation which might cause a third party to launch what could really be an expression of frivolous concern, in some cases, about environmental impact. As the minister well knows, when it comes to environmental questions, there are many claims and counterclaims out there. Very often, the public interest is directly driven by the amount of publicity that can be generated. I'm asking -- and perhaps we can deal with this later in the bill -- what referral mechanism will exist if an environmental lobby or anyone else tries to intercede when the financing is in place and the project is proceeding? My concern is from an investment standpoint. Before they can engage in these projects, companies are required to secure financing and issue time lines for completion. Under this section, I can see projects being derailed or delayed and costs increasing incrementally.
I don't necessarily expect any comment from the minister on this, but the lack of security of due process, and the fact that the minister has the ability to intervene when it is in the public interest, could really have a dampening effect on investment. The public interest can be a very nebulous term, as we've seen from some of the environmental issues in this province. I welcome comment on whether the minister is completely secure with this section and hope that he will not bow to the pressure or third-party intervention that can be somewhat difficult for a minister of the Crown to resist.
Hon. J. Cashore: I think that's a good point: to bow to that kind of pressure would be harmful in a number of ways, including harmful to the government. It is true that the laws on the books have to be administered appropriately. And there's no absolute guarantee; it depends on us having the people there who are going to do that appropriately.
The point the hon. member makes about investment is very legitimate. I don't argue with that concern at all. It behooves government to administer appropriately. But the fact still remains -- since we live in a changing world -- that from time to time there could be projects that aren't in the definition that comes out of the regulations of projects. In those instances, you need to be able to act in the public interest.
If public interest is a nebulous term, the public interest in this case -- in most instances -- is an environmental consideration. We all know, for instance, that British Columbia has the highest incidence of water-borne disease in Canada. We have to be able to protect the public interest when it comes to a potential for something heretofore undefined coming along that could very seriously impact on that resource. That's an example of the public interest.
[3:15]
But the hon. member is right. It has to be administered fairly, and there has to be a great deal of judgment, perception and discretion in the way this would be done. The fact is, a similar provision is in the Environment Management Act, and it has never been abused.
D. Mitchell: I want to follow up on this just a bit further, because the minister has raised some interesting points here about section 4. I think we've already had a very interesting and useful debate on section 3 of this bill in this committee. Section 3 deals with reviewable projects and what can be considered a reviewable project. The minister has told this committee that virtually any project can be reviewable subject to section 3. The scope is extremely broad.
With section 4 we're finding that the minister has the power to go well beyond that, basically to say that even if a project isn't reviewable under the very broad scope and doesn't fit the criteria of section 3 -- which could conceivably capture just about any economic development project in this province -- the minister has the power to designate such a project as reviewable. I don't really believe the minister has made the case for why this power is necessary, given the broad scope of section 3.
The concern already raised in committee today is of possible abuse of that power -- not abuse by this minister, but perhaps by any future minister who might have such broad arbitrary powers to designate any project that otherwise might not be reviewable under the Environmental Assessment Act, Bill 32. It raises the spectre of dealing in hypothetical situations, which the minister already has done, on an issue where there might be a kind of political blackmail. A proponent may bring forward a project that doesn't fit the criteria of Bill 32. But if the government wished, for whatever reason, to wield a sledgehammer over a particular project proponent, the threat of making a project reviewable could exist. One wonders why any government in British Columbia today would require that kind of sledgehammer or power, which is conferred upon a minister of the Crown in this legislation. It's very broad and subject to abuse. I think the minister would agree that it's subject to at least the possibility of political blackmail.
The minister really hasn't made the case. Would the minister not agree that that potential for abuse is there? Could the minister tell us what safeguard there is to protect us from that kind of blackmail?
Hon. J. Cashore: Just to correct the hon. member's wording, this would be designating a project to come into a process. It would not be making the decision about the outcome of a project; it simply would be designating it into the process. The provision within the act -- and it is spelled out in the act, not in regulation -- is a 30-to 45-day period for the public review that would be carried on by the project committee. By regulation, there would then be a length of time for a government review, depending on what came out of the project committee. In the vast majority of instances, that would be in and out during the first loop.
Here we have a situation that has very seldom been used under the mine development review and energy development review processes, but it is there if necessary. I don't think there are any examples hon. members can come up with, either in this jurisdiction or in other jurisdictions, where these powers that have existed for a long time in other legislation have been abused. I don't think that is the way in which
[ Page 8874 ]
government.... Let's remember that government not only involves elected representatives, but -- especially within this ministry -- it also involves excellent career civil servants who have been there for a long time and who give the technical advice to the minister necessary to administer this in the best way possible. In our political system, it's in the interest of the minister to administer it in the best way possible.
I have also pointed out that this kind of clause is not doctrinal in that it exists in the legislation that has been brought in by far more Tory governments than NDP governments. It is consistent with legislation that has been brought in by other governments in other jurisdictions.
D. Mitchell: I have one more question on this. I understand what the minister is saying, and I am not suggesting for a moment that this minister would have the intent of abusing this regulation. My concern goes beyond this minister's term in office to any future Minister of Environment that might have this power. I am certainly not making any suggestions that this minister might abuse the power.
The minister refers to the fact that similar clauses in other statutes have not been abused. Maybe that's an argument for not having this kind of clause if similar statutory authority has never been used or abused. The issue here is one where the minister is so far unable to tell the committee where the guarantee is to prevent a future minister of the Crown -- who has this broad, arbitrary power -- from saying to a proponent of a project: "Listen, if you don't play ball with us, then we're going to put you through the process. We're going to force you to go through these hoops, which will effectively kill your project." Where is the guarantee that a future minister, who might be inclined to abuse this power, will do so?
Hon. J. Cashore: I have answered that question in response to several individuals, but let me answer it one more time and with all respect, hon. members, I will not answer this question again, but I will answer it one last time.
The hon. member has asked where the guarantee is. Hon. member, we are legislators. We deal with legislation, and the fact of the matter is that no legislation exists anywhere in the world that provides absolute guarantees against the possibility of being mishandled. We have to recognize that it's not the function of legislation. I know the hon. member has been a student of political science, and I know he understands that full well himself. So there isn't that kind of guarantee in the legislative sense.
Where, then, are the guarantees? The guarantees are in the sometimes cumbersome but nevertheless best system in the world we know of in which we function: our system of parliamentary democracy. When you have ministers exercising powers in a way that is unwise in our system, that individual then becomes judged on the basis of that and has to pay the consequences for that. I think that applies to people no matter what political stripe they happen to be.
In this particular case, we are not talking about a decision that decides for all time what happens to this project. In the unlikely event that it gets designated -- and history has proven that it's a highly unlikely event -- it would be subject to the instruments that are in the process and that are designed in the bill.
This hon. member asked a question before about independence. Well, it would go to the project committee. There would be different kinds of expertise there, and in most cases, it would be in and out during that phase of the process. In one of my answers I pointed out that there is legislation around the amount of time that the project committee can work on it, and then there would be some further time in which the government itself would have to review the advice that it had received. So it's not a decision to grab somebody's project away that will never see the light of day again. It's a decision that is in the public interest that it be reviewed. Hon. Chair, I have answered this question several times. I don't wish to be impolite, but I will not rise and answer this question again.
C. Serwa: I asked a question a few minutes ago, and the minister did not rise and answer. I'll try to rephrase that question again. My question is with respect to section 4, that the designation is in the public interest. The minister has talked a great deal about the public interest, but it's clear that the public interest has not been well served by the minister's own government. A recent note in the paper indicated clearly, in the civil service as well as in the public at large, that the public is not confident that the public interest has been served. That's one point I want to make on section 4, because public interest is integral to that. The mood out there, both in the civil service and in the public at large, is that the public interest has not been served by the government of the day. So while the minister continues to enunciate with reflections on this, it is clear that his confidence is not shared by the public.
The other point I want to make is that the government has continued to bring in acts following through with freedom-of-information and privacy legislation. It's important in this exercise that the public, which is not a direct participant in this process but an indirect participant, be given the opportunity to understand the substance and the rationale behind the actual sections that we're discussing.
The question I had previously addressed to the hon. Minister of Environment was: what possible advantage would the minister have in making a decision about a project that should be considered reviewable by all the members of the executive branch of government? What possible advantage could the minister alone have? I think the public deserves an answer, because the rationale behind that escapes me.
Hon. J. Cashore: The fact that the Minister of Environment administers the act means that the Minister of Environment sees virtually every project that is to be considered. So it's simply an administrative responsibility that fits.... Again, it's consistent with all the other jurisdictions in the country. So it's a very consistent part of the process.
[ Page 8875 ]
The hon. member has said that I have not articulated the reason for requiring this type of consideration, but the hon. member should recall that during the time he was Minister of Environment he did not take steps to remove the provision in the Environment Management Act that gave him virtually the same power. All his arguments, therefore, have to be considered in that light, because he's saying that during the time he was the minister it might have been okay, but that with somebody else it might not be so good. He had the opportunity at that time, and in his wisdom, he left a clause in the Environment Management Act that is no different, in essence, from this clause in this act. This is pro forma, and it's a standard kind of clause to help deal with the public interest.
[3:30]
I have been asked so many times about what the public interest is, and I've given several examples. I will just very briefly state one example, one that has to do with water quality. We in B.C. have to be very concerned about impacts on water quality, because we have the highest incidence of waterborne disease in Canada -- here in pristine British Columbia. We do have to be concerned about that; that's in the public interest. Also in the public interest is a viable economy in which there can be investment. That too is in the public interest. That point is well taken. I'm not trying to be testy here, but I have answered several of these questions several times.
J. Tyabji: I have been following this debate with considerable interest since it began. The first comment I have to make is that it is regrettable that this late in the session, when we have a record number of pages of legislation in front of us and a bill of this magnitude, the government throws protocol aside in a disgusting attempt to push it through, and calls the bill forward for debate without the lead critic here -- who, in fact, has not arrived as we speak. Not only do we have this monumental bill of great significance to the people of this province, with an immense number of consequential amendments to sections of the bill, but....
The Chair: Order, please. Would the hon. member please take her seat. The Chair has listened for about two hours while we've been on section 4 to what has obviously become fairly repetitious and tedious debate. While the Chair doesn't wish to intervene in permitting the members their say on this section, it's difficult for the Chair to have a member who has not been here during that period of time come in at this late stage and go into second reading debate. At the very least, I would ask the hon. member to address her remarks to section 4.
J. Tyabji: In fact, I have been here for most of the debate. With regard to section 4, however, the minister has made a number of references to the fact that there are sections like this in other jurisdictions. He has said that we have federal legislation like this, and that some of the other legislation already on the books in this very ministry gives this kind of power to the minister. What the minister hasn't addressed is the fact that when we were in the earlier sections of the bill, we did not have an adequate definition of public interest. We do not have the regulations before us that will accompany this bill. We don't have an adequate account of what reviewable projects will be, so we don't even know whether, when section 4 says that if it's not even constituted as reviewable, the minister has the discretion to make it reviewable.... We don't even have that in front of us to make that distinction. When we read it here, it says: "...if the minister is satisfied that the project has or may have a significant adverse effect...." The question is: on what? Are we to assume, because it isn't specified, that it's on the environment exclusively? Or could it be a significant adverse effect, as we see earlier in the bill, on environmental, economic, social, cultural or heritage matters? Is that the effect, or are we going to just leave that with environmental?
Hon. J. Cashore: I have answered that. The answer is: in the environment, primarily.
J. Tyabji: I have been listening to the debate. I didn't hear an adequate.... Since we don't have a definition of environment to accompany this bill, I don't think we have a very good idea of what kind of discretion the minister is going to be exercising. If it is going to be primarily on the environment, then are we to assume that when the regulations accompany this bill, the projects designated reviewable are going to be primarily in that category of environmental significance? When we say adverse effect, will it be primarily environmental, or will the minister be able to designate a project that would have significance, for example, on something outside of the definitions included in the effects section of this bill? Could the minister expand on that? This section is different from other jurisdictions.
Hon. J. Cashore: You wouldn't be able to do it outside of the definition of effects, but effects does cover all aspects.
J. Tyabji: When the minister is determining public interest, what guidelines will help him determine that?
Hon. J. Cashore: I have answered that question.
J. Tyabji: I have been listening to this debate since it began today, and I have not heard an answer to that question. Let me be more specific. When the minister is defining public interest, will he be referring to best available control technology? Will he be referring to waste management guidelines? Will he be referring to some of the guidelines that we saw in the contaminated sites legislation? In what way will the minister be determining the public interest? Will there be a public hearing process that will be governed by regulation? Will it be in consultation with other levels of government? How will it be determined?
Hon. J. Cashore: I have answered that. It will be determined by the project committee, which is an
[ Page 8876 ]
independent process. I answered that in response to the question from the member for Vancouver-Langara.
J. Tyabji: I did hear the minister's comment with regard to the project review committee. What I am trying to say is that the minister himself will be the person making the final determination of public interest. I know that in the backgrounder that B.C. Environment provided -- so that we would have some idea as to what would be a reviewable project or not -- there were a number of things listed. There is not much reference being made there with regard to whether it would be potential contamination, waste management or.... We have seen a number of businesses feel a little bit nervous about the project review process, because the goalposts change. I understand that the goalposts will change when technology brings forward better goalposts, and I don't have a problem with that. The problem is: by what process do the goalposts change? That is one question.
The second thing that I want to make clear.... At the opening of the debate the minister asked specifically if the Liberal opposition supported loopholes for businesses so that they wouldn't have to go through this process. As the minister is no doubt aware, the Liberal opposition was in fact calling for one process. It is not so much that some of the wording in this bill is a problem. As one of the previous members said, the definitions section, which is integral to each section of it, is not tight enough for us to feel comfortable with. The minister is saying "second reading"; it is not second reading. The minister himself asked specifically what our position was, and I am giving him the answer. The answer is no, we don't support loopholes. What we do support is a streamlined process, so people don't get so held up in this process that they give up. On this section, will the minister please answer the question with regard to the guidelines that he -- not the committee -- will be using?
D. Mitchell: For clarification, section 3 of the act refers to the fact that the Lieutenant-Governor-in-Council will make regulations with respect to reviewable projects. Does section 4 simply give the minister power to override those regulations? Is that how it would work, technically? Does the minister simply have the power here to override those regulations?
Hon. J. Cashore: No. Those projects are still subject to review. It is not an override power; it is a power to designate a project that could have impacts that need to be addressed.
D. Mitchell: Could the minister tell the committee whether or not section 4 gives the minister power that is retroactive in any way?
Hon. J. Cashore: No.
D. Mitchell: During the review of section 3, we had an interesting discussion about projects that might be government projects, as opposed to private ones -- public sector versus private sector. The minister responded about whether or not those projects would be treated differently in a review process, and about potential conflict of interest in terms of the government reviewing its own projects, whether they were of a line ministry, a Crown corporation or other public agency. Would the minister's power to designate a project as reviewable if it didn't fit into the guidelines apply equally to projects in the public and private sectors?
Hon. J. Cashore: Yes.
D. Mitchell: On that same question, I'm trying to imagine the government -- the minister -- designating a government project that didn't fit the guidelines as reviewable. I'm thinking, for instance, of B.C. 21, the recent initiative of this government, and the various projects that it has undertaken, and whether or not those projects, whether or not they fit the guidelines, would be reviewable as a matter of course. Does the government anticipate taking a stance on that kind of issue?
Hon. J. Cashore: It has to be a project under the definition of the act.
D. Mitchell: Yes, I understand that, but of course, section 4 says that the minister will have the power even if the project isn't reviewable under the definition of the act. I guess I'm asking here, say with respect to B.C. 21, if those projects would be reviewable as a matter of course.
Hon. J. Cashore: If it's a project that has the potential to require assessment and it's not in the definitions or in the regulations, then there is the potential that it could be brought in.
J. Tyabji: Since the minister wouldn't answer the previous question, the next question is: to what extent does section 4 refer to Bill 42 with regard to the agricultural land reserve?
Hon. J. Cashore: It's a separate statute that stands alone.
J. Tyabji: We know that in Bill 42, there are significant references to Bill 32, and that in Bill 42 the minister can designate agricultural land reserve applications under Bill 32. Basically, Bill 42 is structured so that the Minister of Agriculture can take an Agricultural Land Commission application and put it under Bill 32. I'm asking if the Minister of Environment, in a reverse manner, can look into the Minister of Agriculture's portfolio and say that something there happens to constitute a reviewable project.
Hon. J. Cashore: It's not clear from this question how it pertains to section 4.
J. Tyabji: Let me go through this for the minister. I'm assuming the minister is aware that there is a significant portion of Bill 42 that deals with the fact that
[ Page 8877 ]
although there are no appeals to cabinet for an application under the Agricultural Land Commission, the Minister of Agriculture can designate the application under the Environmental Assessment Act, Bill 32, in which case we see that there is a lot of.... The Minister of Agriculture can set the terms of reference for Bill 32 to come into effect, etc. So Bill 32 -- this bill -- has a significant impact on that. I'm asking if this minister could do the same thing.
Hon. J. Cashore: This question is way out of the category of this section; it's so far out, it's on another planet. That section in Bill 42 deals with a process that has nothing to do with bringing projects into the environmental assessment process. It has to do with making use of the board to fulfil a function that relates to the purposes of Bill 42, so any of those references in Bill 42 have nothing to do with bringing projects into the environmental assessment process.
J. Tyabji: I'm not going to debate Bill 42; I think what it says is very clear. But let me rephrase the question. Could this minister look to parcels of agricultural land as reviewable projects? For example, if someone made an application to get their farm out of the land reserve, clearly that falls under "significant adverse effect," as effect is defined, "and that the designation is in the public interest," as the minister has not defined it.
Hon. J. Cashore: If it's not a project it's not subject to this act.
J. Tyabji: So the question is: does the minister believe that an application for a farm to come out of the land reserve would be considered a project? I'd be quite happy to hear the minister stand up and say: "I absolutely rule out an application to come out of the land reserve as being a project for the purpose of something else."
Hon. J. Cashore: No.
C. Serwa: I'm still wrestling with the purpose of this section 4.
In reference to some of the comments the hon. minister made earlier about waterborne diseases, I want to ensure that the record is made correct. He was talking about beaver fever. Many of our municipalities and jurisdictions derive their fresh water supply from surface waters, and that's a problem throughout British Columbia. We call it beaver fever, but apparently that parasite is in other animals as well.
In trying to determine the purpose of section 4, I think it would be fair to ask: would the minister consider, say, a highway project for designation as reviewable under this section 4?
Hon. J. Cashore: Yes, I assume that a highway would be defined as a project and therefore would be on the list.
[3:45]
L. Fox: I've been listening with great interest to the debate on section 4, as I did in section 3. I'm trying to get clear in my mind about the minister's powers. It would appear to me that section 3 allows the ministry or Lieutenant-Governor-in-Council through regulation, to categorize and list projects in regulation. If there are projects partially in process or not envisioned, it allows the minister to determine whether that project, or partially developed project, should be part of the review process; that's how I envision section 4 working.
That brings the question to mind, then, of something that I think will raise its head throughout the province: landfill sites. It has been a very difficult issue in many jurisdictions throughout British Columbia. In fact, while parcels of land have been set aside around the province, by the Ministry of Lands in cooperation with the Ministry of Environment and the regional districts, up to now there has been a sensitivity to moving forward on developing those sites. But in this legislation the hint is coming through of causing some of those things to be moved forward, perhaps more rapidly than they might have been had this bill not come forward.
The approval process for landfill sites today is largely a regional district, not a Ministry of Environment, process. My question to the minister is: if these sites have gone through the regional district process but not been put into use by that jurisdiction, will the minister have, if the minister deems it in the best public interest, the authority, through the power in section 4, to designate one or many of these projects as reviewable under clause 3?
Hon. J. Cashore: It's not retroactive, so it would not retroactively require a review of a landfill if a project had already been approved.
L. Fox: I ask the question because we talked in section 3 about the difference between a project approval and a permit being issued. If the permit has been issued by the Minister of Environment, but the landfill site has not been utilized at this point, does the minister not see that he has the authority under clause 4, if it is in the public interest, to force this into a reviewable project category?
Hon. J. Cashore: If a permit has been issued, it would not be taken away under those circumstances. As I said, it's not retroactive. A project that has been permitted would proceed.
J. Tyabji: I was pursuing a line of questioning with regard to section 4 and how it relates to applications to pull land out of the land reserve, and the minister said it does if it is a project. As we know, in Bill 32 a project means "any existing or proposed construction, operation, modification, dismantling or abandonment in relation to a physical work." I'm not sure what that means. But in the Minister of Environment's own handout, the backgrounder to this bill, we see that under "agricultural projects," agriculture is largely regulated through the application of codes of practice. It says that thresholds will have to be established in
[ Page 8878 ]
consultation with the agricultural industry -- thresholds for regulation of the agricultural industry under Bill 32. It lists projects that are proposed for inclusion. So we see very clearly that agriculture is one of the major components of this bill. Is an application for removal of an agricultural parcel, where the intent is to remove an operational farm and perhaps move to a different use of the land -- whether that be a golf course, a business site, a commercial site or a subdivision -- a reviewable project under this bill?
Hon. J. Cashore: The removal of land from the agricultural land reserve is not subject to Bill 32 in any way, shape or form. If land was removed and there was a golf course, for instance, and that was defined as a project, then it would be subject to Bill 32.
A. Cowie: Section 4 says that the minister may designate a project as reviewable if the minister feels that there is a significant adverse effect on the public. My concern here is that just by the wording of that section, the ministry, by bringing it into the review stage, has indicated that it will probably be a problem and therefore prejudices the project. It would seem to me that all projects should have to go through a preliminary review, and then some will go on to a more detailed review. This indicates -- to me, anyway -- that anything that is reviewed would automatically be seen in a, so to speak, toxic way.
Hon. J. Cashore: That is a very interesting suggestion. I find it really inconsistent with the kind of comments I've heard from other opposition members. Given the gist of the questions from the opposition and given my own thoughts, I can't imagine anybody wanting us to require virtually every project to go through this process. If we were to decide that every project that comes down in British Columbia go through this process, that would be doing the exact thing about which concern is being expressed under this section. I just don't see that as being a starter whatsoever.
A. Cowie: My concern is that if a project goes into the review process, an apparent prejudice has been identified in that there is a concern. If one is following a planning process, which any municipality or regional district uses, there is a comment by the authorities that basically says: "We have had an overview of this particular project, and it would appear there is no concern." In other words, it goes through a very thin overview that automatically says yes, it's okay -- it can proceed. In this particular case, it seems that there is prejudice that automatically condemns it. However, I want to use that information in order to ask another question.
I've gone on to look at other sections. Section 8 seems to be a logical way of going through a review. I've looked at it; it's pretty standard; it's the way they've done it in Alberta for years. It has been proposed.... In fact, many companies do it. In the GVRD, for instance, an environmental study was done on the various proposals for SkyTrain and commuter rail service from Vancouver to Surrey some years ago. Cultural and heritage aspects were all looked at. It was a big project, and they automatically looked at. The Greater Vancouver Regional District looked at that and made some decisions. Ultimately, the responsibility for that project was with Transportation and Highways, the province. A decision was made, and that was all put aside -- but with no analysis, or hardly any, anyway. It was sort of: "Well, we'll pick this one; it's seems to be the best for various reasons."
I think the minister is going in the right direction in requiring of all these things. It's just the amount of time and the depth. In this particular case, let's suppose the regional district had the authority to proceed and the provincial government was supporting it. Would the minister come in and demand an environmental assessment as outlined here, or would the minister allow the GVRD to undertake its own process and go to the public?
Hon. J. Cashore: If it was in the regulations, we would do it. There will be a process of consultation to decide what will be included in the regulations. If through that process it ends up in the regulations, then yes, it would be assessed through this process.
A. Cowie: I've been involved with a number of these over the years. For instance, the Ministry of Transportation and Highways did a social, economic and environmental impact study on the Alex Fraser Bridge. I can tell you that they spent $30,000, which wasn't a lot of money. In fact, it wasn't enough to hardly look at anything; it was a PR job more than anything else. A valiant attempt was made to do those assessments. They had made a political decision to go through there anyway; it was a matter of identifying the major problems and trying to placate the citizens. They did a reasonably good job, and I happen to think that was a good project.
But where does the minister cut off? When does the minister decide to come in on a project like that and when does he decide to stay out of it? With these urban projects, there is no rationale in many cases. It's primarily a political decision. We need a route, and we're going to put it through there. What is the impact? It seems to me that if the Ministry of Environment comes in, it's just going to mess it all up. It's going to take two or three years and a whole set of rules. What I'm saying is that it's difficult enough as it is to get some projects through.
Hon. J. Cashore: I had a meeting with the environmental committee of the UBCM today, and they felt that the processes outlined in this bill were good. They had some questions, but they certainly felt that this was a good bill.
As I understand it, I think the question is somewhat more far-ranging than section 4. On the contrary, hon. member, if something is defined as a reviewable project, this will be the coordinating process that will ensure a single-window approach and avoid duplication. The GVRD and the municipalities would all be in on the ground floor of the way in which that process would be
[ Page 8879 ]
carried out. They would be involved, and it would be coordinated through this process.
A. Cowie: Now we're getting to the strength of it all, and I get back to my original question, which was: if you're dealing with large projects, every project has to at least go into some kind of preliminary review or else it's going to be which ones are and which ones aren't. It would seem to me that with any project that's going to spend half a billion or a quarter of a billion dollars -- it's going to go across the Fraser River, or it's going to have a number of environmental impacts, or it's going to go through an urban area that at one time had some kind of aboriginal heritage or whatever -- somebody's going to stand up and say: "This is a very important aspect, and we the citizens demand that a proper environmental assessment be done." It would seem to me better for the province to say: "These are the rules that are going to be in; these are the ones that we're not going to do." Otherwise, every little project is going to have to go through some kind of review. We know a lot of single-interest citizen groups are going to come in and say: "This requires a proper provincewide environmental review." Then we're going to have to do it all over again and there will be further delays. It might be pointed out in the beginning that there's a major problem and it shouldn't go ahead -- fair enough. But I think there have to be some rules of what's in and what's out. It just can't be as loose as it is right now.
[4:00]
Hon. J. Cashore: That point is very well taken. That's part of the regulation process, and I would really invite the hon. member to participate in that process so that we do have good definitions. His experience would obviously be very valuable in that regard.
L. Fox: In asking this question, I want to appeal to the Chair: it's a bit far-reaching, but it relates directly to the question I asked the minister earlier. The minister suggested that if a landfill site had achieved a permit it wouldn't be a reviewable project, which begs me to follow up with a further question that makes sense in terms of that answer. In the interim, if there are applications for landfill sites now before the ministry, is the process going to continue the way it has until such time as this bill is proclaimed as legislation?
Hon. J. Cashore: That's a good question. It's not a section 4 question, but the answer is yes, and there is process in the legislation to ensure a smooth transition.
K. Jones: Upon a public complaint being made about a pig farm that's causing a lot of smell for a wide area or a primary mushroom processing plant which is also creating a lot of smell, would this section allow evaluation?
Hon. J. Cashore: If I understand the question, the answer is absolutely not. That would be subject to other legislation, such as the Waste Management Act.
K. Jones: I'm also asked by the critic to inform the minister that under Bill 42, the amendment to section 5 says:
"By these new provisions, if the Lieutenant Governor in Council considers it to be in the Provincial interest, the Lieutenant Governor in Council may require that a proceeding concerning the use of land that has been started under the Agricultural Land Commission Act (and so is before the Agricultural Land Commission for a decision), be referred for a review."
I believe that is contrary to the response that you gave to her question earlier.
Hon. J. Cashore: On the contrary, that is absolutely consistent with the response I gave. It is to be referred to the board for a review. In other words, it does not come through the entire environmental assessment process. It goes that one step for a review, and that is very limited in terms of the scope of Bill 32.
C. Serwa: I would assume that the minister would initiate, under section 4, something with respect to public interest based on the amount of concern voiced by the general public. That appears to be the foundation for section 4: the public accesses the minister, and the minister determines that an environmental happening in industry or a project, etc., should be considered reviewable. For my information, if there's a conflict between the environmental assessment review and the forest practices code, would the minister step in at that time and identify it as a reviewable project under this section 4?
Hon. J. Cashore: Forest practice would be defined as an activity, and insofar as it would be subject to the code, we would only be addressing projects that are defined as projects. So it would have to be defined as a project in the regulations that go with this.
C. Serwa: Under section 4 it would have to be a specific forestry practice, not a specific forest-related practice carried on by one company. I'm aware of the environmental concerns of section 4, but just for my clarification, if a contentious forest practice comes through, which is carried on by one firm -- say a logging contractor -- would that not be classified as a reviewable project under section 4 if it's brought to the minister's attention and he is aware of the specific concern and the validity of the concern?
Hon. J. Cashore: The answer is no.
J. Tyabji: I've been trying to get an answer from the minister with regard to the reference to agricultural land, and we've ended up looking even at sections in Bill 42 where we see very clearly that an agricultural parcel that comes up before the Agricultural Land Commission may be referred for review under Bill 32. We've even looked at the backgrounder here that lists agricultural projects as projects that may be reviewable projects at the minister's discretion. There may actually be agricultural projects that would be open for regulation.... So we can get past this section, I would like to get from the minister some idea of where his
[ Page 8880 ]
discretion will come in. I know he's going to talk about the committee. But I'm not interested in the committee so much, because that's so nebulous that we can't possible debate what the committee might determine. What we can do is look to this minister for his discretionary guidelines in determining what is reviewable.
There are two questions that I'd like to have answered, and really these are the questions that I've been trying to get an answer from since I stood up. The first is: will new technology be one of the determinants in the minister choosing to find a project reviewable when it is not under regulation? The second one is: will a project that is actually an Agricultural Land Commission application be one of the areas where the minister will see fit to exercise his discretion under section 4?
Hon. J. Cashore: If new technology is to be involved, it would have to be part of a reviewable project.
With regard to the reference to Bill 42, again, I answered the question while the hon. member was out of the House; it was asked by her colleague. Just while she is here, the answer that I gave was correct. It would not have the effect of bringing it into the Environmental Assessment Act as a reviewable project, but it would be brought to the board to ask that board to perform a particular function.
Section 4 approved on the following division:
| YEAS -- 32 | ||
|
Petter |
Perry |
Marzari |
|
Priddy |
Cashore |
Jackson |
|
Beattie |
Schreck |
Lortie |
|
Hammell |
Lali |
Giesbrecht |
|
Conroy |
Evans |
Farnworth |
|
Pullinger |
Lovick |
Copping |
|
B. Jones |
MacPhail |
Blencoe |
|
Zirnhelt |
Cull |
Smallwood |
|
Miller |
Dosanjh |
O'Neill |
|
Hartley |
Krog |
Randall |
|
Kasper |
Brewin | |
| NAYS -- 20 | ||
|
Chisholm |
Cowie |
Reid |
|
Gingell |
Dalton |
Farrell-Collins |
|
Wilson |
Stephens |
Hanson |
|
Weisgerber |
Serwa |
Fox |
|
Symons |
Tanner |
Hurd |
|
Warnke |
Anderson |
Jarvis |
|
K. Jones |
Tyabji | |
On section 5.
[4:15]
G. Wilson: With respect to section 5, there are a number of words here that we would like some clarification on. The intent of this bill is clear on this side of the House with respect to the environmental assessment process. We understand that if we are going to review a project prior to commencement or construction, that is something this government may wish to rule on. But this says: "Despite any other enactment...." That gives us some cause to question. What are we talking about here? Then it says that the owner or operator or applicant may not abandon or dismantle or modify a reviewable project. Given the loose definition of this concept of reviewable project, can the minister tell us whether or not he expects this bill to apply to existing operators in existing businesses that would seek to modify, and through the modification of that business, find themselves under a classification of reviewable projects? Would they be denied doing so as a result of a lack of permit, despite the fact that a permit was not warranted or requested in the initial investment of that business?
Hon. J. Cashore: In terms of a previously approved project or an existing project, the answer is no.
G. Wilson: This section seems redundant, in that case. If it indeed says "despite any other enactment," one assumes that there is a previous permit in place, or some form of licence, title, deed or some legal entity that now exists.
Perhaps we could use as an example an operating fish farm, which may be a reviewable project. If we were to use that, and we looked at the operator requiring modification of that farm because of pollutant or effluent problems, or new technologies that may assist in some aspect of that operation, that clearly is a reviewable project. Does it mean that the individual is now going to have to become a certificate holder every time that person wishes to modify, change or in some way alter the way they are doing business? If not, what does it mean when you say "despite any other enactment" -- that you can't modify your operating business?
Hon. J. Cashore: It would only come into effect if it was defined in the regulation. The hon. member refers to an existing business as an example. One pretty major existing business would be a pulp mill that might be planning an expansion. That would presumably be defined in the regulation. In that instance, if I understand the question, the answer would be yes. But the fact is that in the vast majority of cases, the answer would be no, because it wouldn't be defined as a reviewable project.
The purpose of the section is very clearly that to proceed with a project or with the dismantling of a project, the proponent must be in possession of a project approval certificate.
D. Mitchell: I am following up on the question from the member for Powell River-Sunshine Coast. When we were dealing with the previous section, I asked the minister if there was any retroactivity contemplated with respect to his power to designate. The minister is saying that in the vast majority of cases, this would apply only to future projects. If the minister will recall, back when we had a very stimulating debate
[ Page 8881 ]
on the interpretation section of this bill, it was very clear that there were now going to be two categories of projects in the province of British Columbia -- pre-Bill 32 and post-Bill 32. But the minister is now saying that there may perhaps be some retroactivity here. At least, that's what I hear him saying when it relates to section 5, which we're dealing with now. The issuance of a project approval certificate is what this relates to. While that certificate is mentioned in more detail in other sections, which we will deal with later on in this bill, the minister is really talking about reviewable projects which, despite any other enactment, relate to developers or operators who may be existing, previously approved or currently under-operating. Could the minister just clarify what is anticipated with this section, and why it is required?
Hon. J. Cashore: I did answer that question. I said at the conclusion of my response to the question by the member for Powell River-Sunshine Coast why it is required. In order to proceed with a project or with the dismantling of a project, a project certificate is required.
I want to say for the record that I did not say there was some retroactivity creeping in here.
In order to answer the other aspects of the member's question, it would have to be defined in the definitions, which we will all have input into during the drafting of the regulation phase over the next year. It would have to include a project that is defined as a reviewable project.
D. Mitchell: I appreciate the minister's clarification on that, and I am sure that many British Columbians will want to hold the government to the fact that there will be no retroactivity in the issuance of project approval certificates.
The minister says that this section is required because project approval certificates have to be issued by the minister's office. There are several sections of the bill that refer to project approval certificates. If the minister is saying that the primary purpose of this section is to give the minister the authority to issue a project approval certificate, can the minister tell us what safeguards there are to prevent the minister from unnecessarily delaying the issuance of project approval certificates?
Hon. J. Cashore: This section doesn't give the minister the authority; it requires that the proponent have the authority.
D. Mitchell: There are several sections in this bill, which I won't go into now because we'll be dealing with them later, that deal specifically with that authority for project approval certificates. But this section seems to be dealing with a prohibition against proceeding without any approval. It seems to be self-evident. Is there some specific legal advice that the minister can refer to that was tendered in the drafting of this bill that said such a section was actually required? It is already referred to and implied in several sections later on in the bill. Why is this section required here?
Hon. J. Cashore: I heard the comment that this section is redundant. It seems to me that the hon. member is right: it is self-evident. I would agree with that. Legislative counsel -- professionally trained people who advise us with regard to such matters -- tell us that this is required when you are dealing with a project that may be proceeding without the proponent having a certificate. The operative requirement is that they are able to produce the project certificate.
J. Tyabji: The member for West Vancouver-Garibaldi keeps talking about retroactivity, and I want to get some clarification from the minister about my reading of the bill and the semantics involved. We see in section 5: "Despite any other enactment, a person must not construct, operate, modify, dismantle or abandon a reviewable project except in accordance with a project approval certificate that remains in effect...." When we look at the definition of project we see that it means any existing or proposed construction, operation, modification, dismantling, etc. When we're talking about retroactivity, it seems to me that if you have an existing project, for example a mine.... We know that in section 4 the minister has full discretion, outside of the regulations, to deem any project reviewable, so any existing operation can be deemed reviewable by this minister. It then falls under the review process and then under section 5, saying that it must not be constructed, operated, modified, dismantled or abandoned, "except in accordance with a project approval certificate...." It seems to me that if there is a project somewhere that is already operating and the minister designates it a reviewable project for the purposes of this act and it has to go through this process, that's a form of retroactivity. Those are the kinds of semantics we're talking about. Could the minister please clarify that?
Hon. J. Cashore: It would have to be defined in the regulations as a reviewable project.
J. Tyabji: In section 4 we see -- even outside the regulations -- that the minister may deem a project reviewable. Is the minister saying that section 5 applies to all projects except those that come under section 4?
Hon. J. Cashore: It has to be consistent with the definition of reviewable project in the interpretation section, which we canvassed extensively in section 1.
J. Tyabji: I understand that it has to come under the definitions in the interpretation section. In fact, we talked about that; that's why I read it into the record a couple of minutes ago. The point is: do we have a scenario under section 5 where an operating mine -- that the minister, for the reasons listed under section 4, has deemed in the public interest to make reviewable -- can no longer operate outside the project approval certificate? In effect, it is being retroactively regulated.
Hon. J. Cashore: An operating mine would have a mine development certificate. It's very clear that that project would not be subject to this process.
[ Page 8882 ]
D. Mitchell: Mr. Chairman, I've been listening with some interest to the exchange between the minister and the member for Okanagan East. The minister earlier on gave an unequivocal answer to a question I raised about retroactivity. He stated that there would be no retroactivity. He stated very simply: "The answer is no." But now I'm listening to his exchange with the member for Okanagan East. I'm hearing him say that, subject to the definition of project that the Lieutenant-Governor-in-Council agrees to by regulation, perhaps there might be some retroactivity. Could the minister please clarify this for the committee once and for all? I'm growing increasingly confused with this minister's answers to this committee.
Hon. J. Cashore: It would have to be a new project. We did have the question a little while ago, which the hon. member for Powell River-Sunshine Coast raised, about an existing business or project going through an expansion, for instance. In that case, it could well fit into the definition, because the original project is changing substantially.
D. Mitchell: Section 5, which we're reviewing in this committee right now, refers to projects that might be dismantled. For instance, a sawmill that had been operating under a number of permits issued by the Ministry of Environment is closed down permanently and is now going to be dismantled. In order to dismantle the physical structure, the plant, a permit might be required under this new environmental review process, and a project approval certificate would be required for that purpose. Under a circumstance like that, with the dismantling of an industrial project, is there going to be any retroactivity for the owner or operator of the sawmill, who might be out of business by that point?
[4:30]
Hon. J. Cashore: If it was defined as a reviewable project, it could be included. In other words, there could be an environmental concern with regard to the circumstances around the dismantling of the project. But unless it was defined as one in the regulations, it would not necessarily be a reviewable project. Let me give you an example. Suppose there is dam and there are questions about dismantling it. I would think that that would be defined. It would be in the interests of all of us to define that as a project that requires a certificate, because of the necessity of ensuring that it is done in a way that is safe for people living in the area.
D. Mitchell: As I listen to the minister's responses to questions in this committee today, I grow increasingly concerned. When we debated the interpretation section of this bill, we asked specifically about the parameters of the bill. In response to a specific question at that time, the minister gave me a clear impression that all projects in this province are now going to be pre-Bill 32 -- projects prior to the passage of this bill -- or post-Bill 32. There would be a clean cut and two categories of projects in this province. But now I'm getting a distinctly different impression.
The reason I ask about retroactivity is that it is extremely important, to anyone who operates a business in this province, to know if the long arm of the government is going to be able to reach back into the past with a new assessment process that could be extremely expensive and arbitrary. When we asked the minister today about retroactivity on section 4, the minister said: no retroactivity. When we initially asked him about section 5 in terms of retroactivity for project approval certificates, the minister said: no. But upon further questioning, he's now saying not necessarily, but perhaps. I grow increasingly confused, and I think many British Columbians will be confused, as to whether or not the project approval certificate -- which is finally going to be issued by his office when this bill becomes law -- is going to apply to conditions, circumstances or liabilities in the past. It's not clear at all, by any means. So I ask the minister one more time to clarify that.
Hon. J. Cashore: It is entirely clear. I believe the hon. member knows it's clear. If it was not clear to the hon. member, then I think he should refer to the example I gave. Say, for instance, a dam was built prior to when this act comes into effect. Does the hon. member honestly believe that the project of dismantling a dam, just as one example, should not be subject to environmental assessment? Is that what the hon. member is saying? If that is not what the hon. member is saying, then I think it behooves the hon. member to recognize that in some instances when we are defining projects.... We should recognize that the dismantling of a dam is indeed a project. That is not at all inconsistent with anything that has been said. It is a project that could result in environmental impacts and, in most instances, should be included in the projects identified in the regulations.
You can come up with other examples, but again it should be something where the definitions cover that. For instance, the process of dismantling a pulp mill that might result in the release of leachate into a water body is a project in itself. It's certainly a project if it becomes defined as a project. Not in any way, shape or form is that retroactive. That is simply recognizing that we as a body politic -- and the process in which we define those regulations which then become regulations -- decide the kinds of projects that need to be defined in order to protect the public interest.
D. Mitchell: I don't want to get into a semantics debate with this minister about the word "retroactivity." But I think he has finally agreed that aspects of this bill will reach into the past.
Hon. J. Cashore: If you're dismantling, of course.
D. Mitchell: They will, whether we use the example of a dam, a sawmill or what have you. Using the powers of the minister to issue a project approval certificate under section 5, the question is: can the minister tell the committee what would happen in the event of an application to dismantle an industrial facility -- say a dam or pulp mill, as he said, or a
[ Page 8883 ]
sawmill -- coming forward and being subject to the environmental review process, but the business is out of business? Let's say the business was no longer there. How would the project approval certificate be issued? Who would be liable for the terms of the project approval certificate under those circumstances?
[H. Giesbrecht in the chair.]
Hon. J. Cashore: There would have to be a proponent.
G. Wilson: To pick up on the questioning of my two colleagues here, maybe we could sort out some time lines or trigger mechanisms here for our clarification. You were talking about dismantling a project. We are talking about dismantling a project, so clearly there is an existing business. When you decide that you are going to dismantle this business, you may have to apply for a permit. How do you know that? In other words, at what point do you see whether what you propose to do falls under a reviewable project? With respect to the enactment procedure under section 5, you may have permits to operate, for example, under the existing bylaws of a particular jurisdiction. If you intend to dismantle it, at what point can this law supersede the others? I guess that is what section 5 does, effectively. Therefore we have to know when you go and find out whether or not you can do this through this process. Who makes the decision as to how that is going to happen, and through which process. Does it tie back to what we saw in the earlier section? When does all this take place -- at the point that they want to do it?
Hon. J. Cashore: It would be clearly defined in the regulations under what circumstances demolition projects are required to be brought into the review. The answers to those questions about timing are subject to the sections of the statute that relate to those different functions.
G. Wilson: Because he has spent a fair bit of time on the opposition benches and has had quite a bit of experience in this House, I think the hon. minister can understand how concerned the opposition is when we hear: "It is all going to be set out in regulations. These legitimate questions you have are going to be determined at some future date, and we will deal with those when the regulations come down." The difficulty is very much like walking into a car dealership and looking at the body and the interior of an automobile and saying: "Yes, this looks pretty nice. What size engine does it have?" The salesman says: "We will determine that after you buy the vehicle. Buy the vehicle, and we will determine whether it is four, six or eight cylinders. We will determine whether or not it gets ten litres or something more to the kilometre." That is the difficulty we have with this bill.
We also recognize that this bill talks about the abandonment of a project. When is a project determined to be abandoned? If a person intends to abandon a project, then what on earth would make them want to get an approval certificate for it? Why would a person not just walk away? There are abandoned fish farms all up and down the coast, for example, which are an environmental hazard; they are a problem. Cleanup of some of the leftover effluent is bad news. These people are long gone; they didn't wait around to find out if they needed a permit or a certificate. At what point is a project determined to be abandoned? When it is, in what way is some kind of approval certificate going to capture those people who would just walk away from a loss?
Hon. J. Cashore: There is a legal requirement with regard to a fish farm, for example, that they have the proper certification before they proceed with that type of activity. I would think that the example of a sea farm is a case in point. It is a potential abandonment that could be harmful to the environment if it is not done in an appropriate way.
G. Wilson: The difficulty is that the fish are gone, the net pens are there and the proponents have simply up and left. They just walk away from it. Abandonment is abandonment. Abandonment of all kinds of projects happens on a month-by-month or year-by-year basis if there is no profit or benefit. How do you capture an abandonment under this certificate? It says that you need the approval certificate to do that. In what way would the person be in violation of section 5, and if they are -- and indeed, the law would say they are -- how do you go after them?
Hon. J. Cashore: You would turn to the courts to enforce the provisions of the legislation.
G. Wilson: This is my last question on section 5. I really believe, with all due respect, that this is a totally redundant section. I don't understand its inclusion. By implication, if you need a certificate, you can't have an approval to do something unless you have one.
The language here says that you can't modify. Under Bill 42, we know that the change in status of agricultural land is going to heard through the proposition that is being put forward in Bill 32. We canvassed that in that bill fairly extensively. We know that what is set up under Bill 32 is going to dramatically affect agricultural land and modification change of that status. Could the minister tell us whether or not -- for a person who owns agricultural land and intends to modify its use, whether it's within the agricultural land section or not -- that modification is going to have to first be subject to an approval certificate under section 5 of this act as well as anything he or she may have to do with the ALR?
Hon. J. Cashore: It would have to be identified in regulation as a modification of a reviewable project.
G. Wilson: With all due respect to the minister, that is a totally unsatisfactory answer. We have absolutely no idea of what's in the head of this minister or those who help this minister put those regulations together, as to what would constitute those regulations. What we
[ Page 8884 ]
are really being asked to do here is approve a blank cheque.
Hon. J. Cashore: I just want to point out that recently this hon. member stood up in this House and read a section of the Alberta environment act, and suggested that in actual fact the environmental assessment act in Alberta lists reviewable projects. It does not. The section the hon. member read was very similar to a section within this bill which we will be coming to later on. I will point it out at that time. The hon. member did not list a set of reviewable projects that are outlined in legislation in Alberta; he read out a list of circumstances in that province under which those definitions would be developed. We have a similar section. We will be reading that similar section and pointing out that, contrary to what this hon. member said in the previous debate, there is absolute similarity -- I won't say absolute verbal identity -- between the Alberta act and this act, which is what I have contended all along.
G. Wilson: I don't know what that had to do with an answer to my question. In fact, I don't think it had anything to do with it at all. I'll be happy to debate with this minister when we get to that section. Having thoroughly studied the various acts in the various jurisdictions, I have never implied that they had a reviewable project stipulated in their legislation. I haven't implied it, nor have I suggested it, because this is new legislation. What we are being asked to do here is approve a piece of legislation which the minister tells us is going to be virtually given all of its beef -- all the actual formulation of its power -- through regulations that will happen through order-in-council without any debate in this House or any input from the public.
[4:45]
We also heard from this minister -- and I'm sure he will have his chance to respond -- that this bill is not going to be put into force by regulation for at least another six months or so. Given the complexity of it and the ambiguity of its language -- and I'm being kind when I say the language is ambiguous -- and the fact that it isn't going to come into effect for six months, the government should pull this from the order paper now. Let us spend the six months tightening up this language and bringing some regulations down so we can see what's going on. Let us get on with the other business of this House and work on bills that are in fact properly constructed and ready to go, instead of wasting time on trying to pick the minister's brain as to what he may or may not have in mind for some regulations.
Hon. J. Cashore: We need the bill in order to inform the process that would lead to the development of the regulations. We need the bill in effect at the end of the time period in which the regulations are developed, which would be close to a year, in order to fulfil the equivalency provisions with the federal environmental assessment act. We need to do this so we don't get whipsawed in British Columbia and have our resource development directed by the federal government, when we need to be in the driver's seat on that issue.
The hon. member read from the Alberta act, responding to a point I had made that we were going to be answering the question of reviewable projects in regulation. I'm simply making the point that where he had implied there was an inconsistency between ourselves and Alberta, there is no such inconsistency. Alberta, Saskatchewan, Ontario and other jurisdictions in the Maritimes also define reviewable projects by regulation. That's the only point I was making. In other words, this hon. member stands up and says that we don't have the answers that would come from the regulation definitions at the present time. My answer is that this is not inconsistent with what happens in other legislation. But one thing of interest is that this is the last major province to bring in environmental assessment legislation, and the process that is taking place in this province has involved far more consultation than in any other jurisdiction in Canada. I believe it's going to be the very best legislation in Canada.
G. Wilson: Since the minister has raised this question, could the minister tell me where in the Alberta act does it talk about an environmental assessment act being looked at for a reviewable project, which includes economic conditions, social conditions, cultural conditions and heritage conditions in an omnibus kind of definition of reviewable projects? Maybe he could also point out where all those social, economic, cultural and heritage definitions are included in that act, and where it stipulates that there is a widespread power given to a single appointed minister or minister's designate with respect to the assignment and assessment of it. I have chosen Alberta, because that is probably the strongest and most detailed bill in any of the jurisdictions across the country. If we want to debate the Alberta legislation -- which in my judgment is a colossal waste of this House's time -- I'd be happy to do that. But before he embarks on that debate, I hope he will answer those questions so that I can come back and point out the complete opposite in terms of approach.
Perhaps he can come back and answer the question I put to him with respect to the Agricultural Land Commission and the implication of section 5 with respect to the modification or a change in operation of land that is under the ALR. They are going to have to undergo a public hearing process, which will be defined under Bill 32, to change the status from agricultural land to what it may be deemed to be desirable for economic benefit to the individual who owns the land, whether it's in the agricultural sector or not. Does the modification of the land under section 5 apply? Yes or no.
Hon. J. Cashore: The answer is no. I answered that question about half an hour ago. If the hon. member had been listening, he would have been very aware of that. The section in the Alberta environmental assessment act is section 38(c): "to predict the environmental, social, economic and cultural consequences...."
[ Page 8885 ]
The Chair: The Chair would remind hon. members that we are dealing with section 5, and he is very anxious to get the discussion back to section 5. Please address remarks through the Chair.
G. Wilson: I'd be happy to do that, hon. Chair. As I say, if this minister wants to debate the Alberta and B.C. legislation in parallel, I would be happy to do that. I have all of that material with me, and we can certainly debate it in parallel, which will be a colossal waste of this House's time. Nevertheless, if the minister is insistent on doing that, I certainly have the time.
I come back to the minister saying that the answer is no. I wonder if the minister could square that with the Attorney General's comments in debate a couple of evenings ago, when we talked about Bill 42 and the implication of Bill 42 with respect to this language. We are of the understanding that there will be such a public hearing process, and that the public hearing process will, in the words of the Attorney General, "be referred to in this act." If there is a prohibition against proceeding without approval under section 5, I am curious to know why that is so.
Hon. J. Cashore: This hon. member is again putting us back into debating another bill that was heard in this House. The use is of the board that is created through the Environment Assessment Act to conduct a public hearing. They would be using that board, because government did not want to create yet another instrument when it was felt that it could make use of that one.
G. Wilson: I know what the reason is. My question is: if they're going to use the existing process, why would that board not want to modify or look at the modification of a proposal under section 5 prior to a permit to change land use? It isn't that they're going to use it; I know they're going to use it. The Attorney General was very specific with respect to how Bill 42 and Bill 32 are tied together. There is no dispute there. The question is whether section 5, prohibition against proceeding without approval, would apply to agricultural land, given that that may change the land status.
Hon. J. Cashore: No, hon. Chair.
J. Tyabji: Earlier the minister said that in the event of someone not meeting with the conditions of section 5 -- that a person must not construct, operate, modify, dismantle or abandon -- the member for Powell River-Sunshine Coast and some of the other members talked about some of the projects that might be reviewable or might come under this section -- for example, an abandoned fish farm. In the event of a fish farm being abandoned, the minister said that the avenue for the government to pursue the person who abandons that project would be the courts. I am a little confused, because the minister also said -- I think to the member for West Vancouver-Garibaldi -- that there had to be a proponent for the project in order for the project to come before this act in the first place. If a proponent for a project like a fish farm has abandoned it, and somehow it has ended up in this act by the virtue of it being a fish farm and therefore a reviewable project by the minister's discretion, by what avenue is the minister going to pursue court proceedings against that person for not meeting the conditions of section 5?
Hon. J. Cashore: Presumably you'd go after either the company or the individual to gain recourse. But I suppose it's possible there would be some situations where there would be no recourse. If that's the situation, then you'd have to deal with those specific circumstances.
J. Tyabji: In terms of designation by the minister, will the regulations be laying out how far back in time a project would be deemed a reviewable project in the event of it being abandoned?
Hon. J. Cashore: The regulation will define the terms and conditions of abandonment.
Section 5 approved.
On section 6.
G. Wilson: We now come to the prohibition against proceeding without a licence and to the effect on permits in section 6(1): "Despite any other enactment, a minister, other public officer or agent of the Crown must not exercise a power under another enactment to issue an approval...." We look at this language in conjunction with section 5, and we start to recognize that sections 5 and 6 -- in our judgment, anyway -- seem to be somewhat duplicative and redundant. However, section 6(2) is interesting in itself: "Subsection (1) does not apply in respect of a power under another enactment that is specified by regulation made under section 90(2)(a) for the purpose of this section." I know that we can't always leap ahead, but sometimes it is important that we do. Section 90(2) says: "Without limiting the generality of subsection (1), the Lieutenant Governor in Council may make regulations...." It stipulates a whole host of what those are.
My question to the minister is: how can we be expected to approve section 6(1), when you have provided yourself a caveat that essentially allows for potentially unfair or unequal treatment? You say that the following cannot happen; these are the prohibitions and restrictions; this is how the licences can proceed, unless, of course, there is a potential where cabinet may make regulations limiting the generality of subsection (1), by specifying a number of the following. In looking at those, we'll have to obviously debate those under sections 90(1) and 90(2), but they provide an enormous loophole that gives the minister tremendous power with respect to this particular bill.
How can you expect us, in all good faith, to accept section 6(1), when you've just given yourself an enormous door you can walk out of under section 6(2)?
[ Page 8886 ]
Hon. J. Cashore: This refers only to section 90(2)(a). It doesn't refer to that entire list there. It just refers to (a).
G. Wilson: But if you look at section 90(2), it says: "Without limiting the generality of subsection (1), the Lieutenant Governor in Council may make regulations (a) specifying the enactments for the purpose of section 6(2)...." How much broader can you have it? The minister says it refers only to section 90(2), but section 90(2)(a) says, "....specifying the enactments for the purpose of section 6(2)." In other words, it's a blank cheque.
Hon. J. Cashore: It's also modified by subsection (3), which gives two very specific tests that help to define that.
G. Wilson: I'm sorry, the minister lost me on that. It's defined by subsection (3) of what?
Hon. J. Cashore: Subsection (3)(a) and (b) of section 90.
G. Wilson: I'm certainly prepared to suggest, in reading this long and rather complex bill, that I have missed something here. If we're talking about sections 90(2)(a) and 90(2)(b), I wonder why that isn't stipulated or spelled out under section 6(2). If there is an exemption under 90(2)(a) for the purposes of this section, why is that not included in a section? Or is that one of these amendments we're looking at?
[5:00]
Hon. J. Cashore: You track that through section 2(a), and then this reference in section 3 refers back to 2(a).
G. Wilson: Have I got this correct? We're debating section 6(2), which is referenced by section 90(3)(a) and (b), which is tied in by section 2. This is the reason that this bill should be hauled off the order paper. Of all of the legislation that I have had the privilege to debate, it's the worst piece. This has to be the worst proposed piece of legislation we've seen -- just in its scripting alone.
Hon. J. Cashore: The Chair has shown a great deal of indulgence with the way the opposition has been debating in committee stage. There has been a great deal of leeway with regard to discussions that involve other sections. The fact is that there is a very logical progression. It's outlined clearly in the bill. If hon. members, who have now had sufficient time, had taken the time to follow the references.... Those references track back and forth throughout the different sections. That's standard within legislation, so all this righteous indignation is really not appropriate in this case. There has been plenty of time for this hon. member to read, learn and inwardly digest how this bill operates. No amount of dramatic comment is going to change the fact that this bill is very logical. It's well laid out, and we're on section 6.
G. Wilson: I realize that the minister may think this is righteous indignation; it isn't. It's utter frustration with trying to get through a bill which.... We were just told that section 6(2) is modified by section 90(3), which is tracked back through section 2(a). I think that's what the minister said. There is not a single mention in section 6(2) of section 90(3). If section 6(2) is modified by 90(3), why doesn't it tell us so in section 6?
J. Tyabji: Further to the point made by the party leader, under section 6(2) we are referred to section 90(2)(a), which is a blank cheque. The minister pointed out that section 90(2)(3) will limit section 90(2)(a), but it doesn't. So for the purpose of debating section 6, I want to look at section 90(3) for a second. It is the one that the minister says should allay our fears about 90(2)(a), which modifies 6(2). I see that it is obviously a very clear way of doing things, as the minister said.
Under section 90(3), it says: "The Lieutenant Governor in Council must not exercise the power to make regulations under subsection 2(a) unless satisfied that the exercise of the power under the enactment to be specified (a) assists or will assist an applicant to provide information, analysis or plans for a purpose under this Act or the regulations, or" -- and that's important -- "is or will be necessary or desirable in order to respond to an emergency."
I don't know that that's particularly limiting. I don't know that that section does anything to allay the fears raised by the member for Powell River-Sunshine Coast about the fact that 90(2)(a), referring back to 6(2), is wide open. Basically, we have full ministerial discretion in every aspect of this, and this does represent the back door that the party leader was referring to earlier. This very clearly does exactly what the minister has said he is trying not to do with this bill. For the purpose of debate of section 6(2) -- or if the minister wants, we can debate it later in section 90, but it is all looped together -- maybe the minister can tell us why we should feel reassured by section 90(3) limiting 90(2)(a), which limits 6(2)?
Hon. J. Cashore: You can very readily track the connection in section 90(3)(a) and (b). There are two very specific tests required with regard to the following through of section (2)(a), specifying the enactments for the purpose of section 6(2), and then that brings you back to section 6(2). So it is very clear.
J. Tyabji: I have a question for the minister, because I don't think we will get any agreement.... One thing that you will get an agreement on on this side of the House is that this bill needs to be redrafted, if nothing else, and especially because it has to....
Some Hon. Members: Order, order!
J. Tyabji: Yes, I will wait for order.
Interjections.
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J. Tyabji: Would the government like to filibuster the bill?
The Chair: Order, please. We are on section 6.
J. Tyabji: With regard to section 6, there is clearly a need for clarification. Is the minister planning to have some definitions in the regulations to accompany the bill -- most particularly with the limiting parts for section 6 contained in 90 that make references to emergencies? There is a reference to "desirable"; there is talk about regulations there that might limit section 6(2).
Hon. J. Cashore: They are not limits; they are tests.
Section 6 approved.
On section 7.
G. Wilson: Again, with information relevant to specific categories, we notice in going through this that there is a whole series of different categories -- most of which we are not going to learn about until we find out what these mysterious regulations are that are going to be developed in some back room somewhere by government.
D. Lovick: Oh, nonsense.
G. Wilson: I hear the member for Nanaimo saying that that is nonsense. I would say that at least 50 percent of the answers to our questions -- and I am being generous -- about how this is going to work, what is defined and where the definitions are lie in some future, nebulous regulations which aren't going to come in for a year. We are not going to see the regulations enabling this enabling legislation for a year. We are going to put this on the back burner for a year, after we have spent valuable time in this Legislature in the middle of July debating it, when we could be doing something more useful.
The Chair: Order, please, hon. member. We are on section 7, not on second reading. Please proceed.
G. Wilson: Could we look at section 7? It says: "At the request of the minister, the executive director must collect, analyze and make available for the purposes of sections 9 and 32." Of course, once again we have to cross-tab over to look at those. That has to do with information analysis and plans in section 9; in section 32, we know that it has to do with the availability of the applicant with respect to information analysis and plans relating to the types of reviewable projects -- we have to do this at the request of the minister. "For other purposes of this Act, information relating to categories of reviewable projects...." We heard that there was going to be some kind of consistency with respect to the application. We are now seeing that there is going to be some form of categorization of these reviewable projects that are designated by the minister. Can the minister tell us what he has in mind with respect to these specific categories? Are these categories going to be defined by type of activity? Are they going to be defined by the scale of the activity? Are they going to be defined by the location of the activity? Are they going to be defined in some way by whether or not they're involved in some primary or secondary economic sector of the economy? How do we know what the minister intends on this question?
Hon. J. Cashore: This is a good-news section. It would be helpful if the hon. member would read this section and recognize that it is very positive for the proponent. It's intended to reduce the costs incurred by a proponent by allowing access to relevant information which has been compiled by the executive director. In those instances where it's important to do that and where that's required, that's how this section functions.
G. Wilson: I know what it's intended to do. The question is: why is the minister going to determine who gets the break financially and who doesn't? Will the minister tell us what the categorization will be and how it relates back to what we've passed in terms of categorization of projects under sections 3(2)(a) and (b)? Why is it that we are having specified categories that the minister will determine? If we're talking about reduction of costs, why will some benefit and others won't? What's the rationale for the difference?
Hon. J. Cashore: It would be applied consistently.
G. Wilson: Perhaps the minister can tell us how this consistency is going to be applied if we have no idea what constitutes the category. How is the category going to be put in place? What is in one category and what's in another? Or is it going to be consistently and fairly applied according to the mind of the minister of the day?
Hon. J. Cashore: The purpose of this is to provide a consistent approach. It is intended to reduce the costs incurred by a proponent. It is not something that is applied in an inconsistent way. It's applied in a consistent way, and that's the purpose of this section.
C. Serwa: It's not quite that clear to me. In this section, we are talking about categories of reviewable projects. The minister is talking of reducing the cost to the proponent. A specific project is not involved. We're talking about categories of reviewable projects. I fail to see how this is going to lighten the burden or place a heavier burden, unless I'm reading this particular section wrong. It seems to be information on reviewable categories.
Hon. J. Cashore: You could have a series of hydro projects, for example, and they could be in a similar category of types of projects. It would be a similar situation, and the same approach would be applied.
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C. Serwa: I'm sorry. Perhaps I've come late into this debate, and perhaps the minister has explained that aspect clearly, but we're looking at reviewable projects as a category. I fail to see how a specific project falls into this particular category, because in his earlier statements, the minister had indicated that one of a series of what would generally be considered reviewable projects may be selected for closer scrutiny and for designation as a reviewable project by the minister himself. I seem to sense an inconsistency. It may be the legalese or the drafting of this section, but it's not clear to me.
Hon. J. Cashore: This is the opposite of inconsistency. When a certain category of project emerges, the conditions that would apply for one project in that category would then be uniformly applied to all projects in that category. It would be the opposite of inconsistency. It would be to identify certain categories of projects and then ensure that the same conditions apply.
G. Wilson: What the minister doesn't seem to hear us asking.... I think the member for Okanagan West asked for it, I have asked for it and the member for Okanagan East asked for it. It says is that there will be specific categories which will require, because the word is "must" collect.... It says they must go out and collect it and make available for the purposes of sections 9 and 32.... Section 9 says that if the executive director has information, analysis and plans, he may make them available. Section 32 says that if the executive director has information, analysis and plans, he may make them available. In section 7 we are seeing that there are going to be specified categories where the executive director must collect and analyze the information. That usually takes time and money, and it usually takes, I would think, some kind of consistent approach toward the proposition that is going to treat one applicant considerably differently from another applicant.
[5:15]
What are the categories that will require the executive director to collect, analyze and make this information available? What are the categories where he may make them available if he happens to have them at his disposal to make available?
Hon. J. Cashore: This will be based on the kinds of projects that are coming in at a point in time. If we had a crystal ball we could predict the future and we'd know what categories, but this is a very creative province, and proponents will be coming forward with new kinds of projects. In the interests of efficiency and fairness, the same criteria will be applied to all of those projects. Once a category has been identified, there will be a consistency in the way in which that is developed. One example, for instance, could be fish farms; another example could be hydro projects. There are examples of categories that we would be seeing -- perhaps in a period of two or three years one type of new category of project that we haven't seen before. In the interests of efficiency and of making that information available, it would be very important that the executive director be required to provide that kind of assistance in those circumstances.
G. Wilson: In other words, we don't know. Whatever may happen, may happen. This is sort of a potpourri of legislation and a go-to-the-smorgasbord-and-see-what's-on-the-table-when-we-get-there kind of affair. This is why we have so much difficulty with this bill, hon. Chair. But let's just assume that we've got those categories together, that somehow the minister has come up with this magic set of categories.
Under section 7 it says that the executive director must collect it and must analyze. If we're talking about fish farms, for example -- and as someone who's been actively involved in planning, regulating and recommending the putting in place of legislation on fish farms -- one of the primary research tools that was attempted to be used in fish farms was the extent to which there was effluent pollution as a result of both the introduction of feed as well as the problem of overcrowding and fecal deposition on the seabed underneath fish farms and the extent to which antibiotics were carried in the water and impacted on shellfish in neighbouring areas. That took substantial analysis, because you don't just scoop up a jar of water and take it off and come back and say: "Yes, no problem." It takes time, because first of all you have to have a control sample. Secondly, you have to have some kind of time parameter to make a reasonable or sensible decision. With a fish farm, at least you've got a reasonably accessible area in which the data can be collected, the analysis can be done and any kind of subsequent recommendation from that analysis can occur.
What if it's a change in a pulp mill effluent situation, as we have in my own community of Powell River? That pulp mill is putting in place new holding and containment and filtering systems. If that's going to be a category where the executive director must collect and analyze, what body of staff does this executive director call on? Where is the expertise? Does he go to other government specialists? I can tell you, from my knowledge, that within the Ministry of Environment these people are already overworked with long-term environmental analysis. They're certainly not going to get the expertise in Ag and Fish. I know for sure that the Sliammon people have been trying very hard to look at pulp mill effluent impact on shellfish. That could very well be an area. The expertise to be able to get that needs to come from the universities, and that's expensive. Where does the money from come for this?
What does the applicant do when the executive director must collect and analyze and the analysis may take three to five years? Is the project on hold for that length of time, if it's a specialized category which has been decided by the minister? What are the answers to these questions?
Hon. J. Cashore: This would be generic information that applies to that category of project. Unlike the comments the hon. member has made, it would not mean the executive director having to send somebody out with regard to each proponent. The very
[ Page 8889 ]
purpose of this is to have an economy of scale because of a category of projects.
C. Serwa: With respect to section 7 and the reviewable projects, the ministry has sent out a backgrounder that contained about 25 different categories. In section 7, when the minister is referring to identifiable categories, is the minister referring to one or more of the 25 identified categories? It seems to me that there is virtually everything, from chemical and chemical products industries -- and a list under that of specific industries -- to mine, energy, water containment or diversion, municipal or regional, tourism and recreation projects. It seems that virtually every classification has been anticipated and recognized in one of the 25 categories. Will these be the categories that the minister will specifically designate? Or will there be a new category?
Hon. J. Cashore: This backgrounder is a discussion starter. Given that some of those would probably end up on the list as reviewable projects, it's conceivable that some of them could end up as categories -- but not necessarily. Some of them could, though, coming out of that process.
G. Wilson: I think it's the first time I have ever seen a proposed piece of legislation being referred to as a discussion starter and backgrounder. This is proposed legislation; it's going to impact on the people of British Columbia. This is not....
The Chair: Point of order. The Minister of Environment.
Hon. J. Cashore: There was no reference, either by the Environment critic for the third party or myself, to this backgrounder being part of the legislation. My comments were in response to a question raised by the Environment critic for the third party.
G. Wilson: With respect to section 7, I'd appreciate clarification. In section 7, with respect to "the executive director must collect, analyze" -- under sections 9 and 32, which are the two reference sections on this -- this presumes that that information is indeed readily available and that we're not talking about going out and getting new information, despite the fact that that may be required prior to a permit being given. In other words, this isn't going to exempt somebody from being required to get baseline information if that's not readily available. Is that correct?
Hon. J. Cashore: That's correct.
Section 7 approved.
On section 8.
G. Wilson: Now we get into what the applicant has to provide with respect to the content of an application. In looking at this section, we have to ask ourselves some questions about what is and is not required. With respect to this section, the proponent of a project may apply to the executive director for a project approval certificate, paying the prescribed fee. We understand that. It now says that once that process has been done, it has to be "accompanied by any prescribed information and a description of the project, including but not limited to...." Look at what you've been asked for in section 8(a) through (k). It's a pretty open and not too specific list including, for example: "...a description of the existing environmental, economic, social, cultural and heritage characteristics and conditions in the vicinity of the project...." What are we talking about there by saying "in the vicinity of the project?" Are we talking about a radius of one mile, two miles, five miles or 25 miles? In the case of Windy Craggy, we're talking about one of the largest sectors of British Columbia, if the Tatshenshini is its vicinity. What exactly are we looking at with the term "vicinity?" I'll start with that one, and then we'll work through the others as the minister might explain it.
Hon. J. Cashore: This is a list to enable the project committee to put forward the kind of information that's needed in order for them to decide whether or not a project should proceed. This is to help enable the proponent to identify the kinds of information that would be needed. It says "not limited to" because it could be that in certain specific circumstances the project manager would identify additional kinds of information related to that particular project. But this is simply to enable the project committee to get on with its work by making it very clear what is required. Again , this is to help them at a part of the process where one would expect that the vast majority of the projects would find approval.
C. Serwa: In section 8(1): "The proponent of a project may apply for a project approval certificate by applying in writing to the executive director and paying the prescribed fee." I would like to make a couple of points here. First of all, the fee is not identified. I assume it will come out in regulations. But there are a variety of standards and options and a variety of ways of handling this process. Some will be rather straightforward and some will be long, tedious and complex. Is the fee that is being proposed simply a token, representative fee? Or will it depend on the amount of time on the part of the executive director to scrutinize the whole process?
Hon. J. Cashore: I apologize to the hon. member. I was clarifying a point with officials, and I didn't get the specific question.
C. Serwa: My apologies to the minister. We'll try to run that through again. Section 8(1) states: "The proponent of a project may apply for a project approval certificate by applying in writing to the executive director and paying the prescribed fee." My question is with respect to the prescribed fee. There are a variety of options and degrees that a project will have to go through. Some, as you've indicated, will be rather straightforward. Others will be complex and tedious. Is
[ Page 8890 ]
it proposed that the prescribed fee be one fee for everything? Does the minister have any idea what type of fee that may be?
Hon. J. Cashore: The term "prescribed fee" means that it will be subject to regulation. So the process of prescribing a schedule of fees will be pursuant to the development of the regulation.
C. Serwa: Then a series will be prescribed by regulation. There will be an initial proposed fee for the original application. Subsequent to that there will be other fees, which will be proposed or levied under regulation, for the more complex issues that come before the executive director. Is that correct?
Hon. J. Cashore: Yes, the way the hon. member has described that is correct. Depending on the extent to which the process is required, the fee will be tailored to those circumstances.
C. Serwa: I have one last question on the fee structure. Since the proponent has to do so much work and has to incorporate all the costs of the various consultants, as it's pointed out, on the economic, social and all the other environmental concerns associated with the project, the proponent itself -- the corporation promoting the project -- will be faced with a substantial amount of overhead in accumulating the kind of information the minister requires. It seems to me that with the ministry undertaking simply a regulating and policing type of service, the fees from the ministry should be minimal, if anything. Obviously no one is going to go into that to simply waste the ministry's time, when a large capital outlay is made by the proponent in order to provide the information to the executive director.
[5:30]
Hon. J. Cashore: There will be consultation with industry and the various proponent groups in order to establish a fee that deals with cost recovery, but not in a way that negatively impacts on their ability to carry out their business. It recognizes that the cost of this process is factored in as a cost of doing business, but it's to be applied in such a way, through this consultation leading to the regulation prescribing the fee, that all the various participants would have input into. This is a process we are making use of now in more situations. The waste discharge permit fee is a case in point. So there is a process of consulting with the various businesses with regard to trying to establish how that would impact on them, and that would be part of the steps toward drafting that regulation.
C. Serwa: In section 8(2)(b), it says: "a description of the existing environmental, economic, social, cultural and heritage characteristics and conditions in the vicinity of the project...." That seems like a very large demand to place on the proponent. In earlier discussions, the concern with the aboriginal population and sacred ground came up for consideration. For example, there was no opportunity for the proponent to be aware of certain of these characteristics. It is difficult for me to accept that you are imposing something in legislation on a proponent that the proponent has no opportunity of determining.
Hon. J. Cashore: We would still entertain the application even when the proponent was not able to glean the depth of information that goes beyond a reasonable requirement. I would also point out that the way this is designed, and the way this functions in other jurisdictions, is that there is a very useful and supportive interaction between the executive director and the proponent at this stage. It is in the interest of the executive director to work with the proponent in developing their responses to these different areas, so that when the project review is struck and this information is brought forward to the committee, it serves the purpose of enabling that committee to get on with its work. So it's not just that they would be handed a list and left on their own; there would be a great deal of interaction during the application process between the executive director and the proponent.
C. Serwa: In this section it appears that this information is required prior to the application, or when submitting the application. It's not clear to me how the interaction can occur when all this information is required at the initial stage of the application. Perhaps the minister can clarify that for me.
Hon. J. Cashore: A good question. A proponent is working on a project, and he is dealing with the example that the hon. member gave a moment ago and wondering: how far do I go with this? He calls the executive director, and they discuss a reasonable way to go about getting that information in place for the purposes of bringing it to the project committee.
G. Wilson: Clearly, if we want to get a handle on the environmental impact, we have to have some form of assessment of what the likely potential is going to be of damage to the environment and how that can be mitigated in any particular project. But it seems that the person here has to pay a prescribed fee. We don't know what the fee is going to be -- it is going to be set at a later date by regulation -- like so much of the rest of this bill. The fee is required to put in place some prescribed information, and most requirements listed here will be reasons for non-approval of the project. That doesn't mean that the applicant is precluded from stating the best case, and obviously one would expect that they would state the best case.
But, for example, if we were to look at a description of existing environmental characteristics and conditions in the vicinity of the project, are we talking about a general description of the landscape? If so, what's the use of it? To say that it may be made up of deciduous or non-deciduous vegetation, and it may have slopes and a particular soil type or whatever, what's the purpose of that? If we're talking about economic, social, cultural and heritage characteristics and conditions in the vicinity, to what extent and on what scale are we expecting some kind of detailed information? A lot of
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this isn't available in much of British Columbia, outside of a general thumbnail sketch of what exists in a particular community. I see members opposite shaking their heads. The members opposite clearly have not had -- as I and others on this side of the House have -- the privilege of working with applicants who are trying to put in place a project under the existing regulations of the Ministries of Environment, Highways and Lands. If that proponent is to go forward, I can tell you that it's tough enough under the existing regulations to come up with a definitive set of answers to questions.
Section 8(2)(e) says that there has to be an "identification of any new or expanded public works or undertakings that will be required because of the project." How on earth is the proponent to determine what will or will not be required? One presumes we're talking about roads, schools or other public works undertakings. What is the purpose for including this in the approval of the certificate? Nowhere in here do we see any kind of geotechnical information and data that may be required.
This is all generic material that could be used in a thumbnail sketch. Where is the detailed analysis and description of the specific impact of the undertaking on the environment -- which is what this is supposed to be -- as opposed to this general set of conditions, which may be used much more loosely in a provision to deny rather than to approve?
Hon. J. Cashore: This is a very early stage in the process. It helps to develop a baseline from which the deliberations of the project committee will then be able to carry on. What we have is a list. If the proponent needs assistance or clarification with regard to exactly what is required under any one of the section 8 subsections from (2)(a) to (k), the interaction between that proponent and the executive director will be a very worthwhile interaction. The executive director will assist the proponent in outlining that.
At this stage, there's no intention to require the applicant to go beyond what is required to get a good concept of a baseline. The hon. member referred to subsection (e), the "identification of any new or expanded public works." That would certainly be in the interests of the proponent. In most instances at that point, I don't think it would be an onerous task to begin thinking about what public works will be required because, obviously, those requirements are going to have ramifications that have to do with the provision of services. This is where it involves the interests of the municipality or the regional district.
G. Wilson: That's right. The minister is absolutely correct. Those kinds of procedures exist right now in most municipalities and regional districts. They call for a development plan, and a project development plan requires that some specific information on the impact of that development on the municipality or regional district is provided. What we're seeing here is a duplication of what already exists. We already have an approval process within the Ministry of Environment, Lands and Parks, and we have a referral process by every other Crown agency.
Section 8(2)(J) says: "a description of any discussions undertaken by the applicant about the effects of the project, with ministries or agencies of the government of British Columbia, departments or agencies of the government of Canada...." That exists right now, today. You have to get an approval permit to go ahead.
We used a fish farm a fair bit in our discussion this afternoon. You need to have an approval process that has as a referral agency everything from the Coast Guard to the Department of Fisheries and Oceans, the Ministry of Environment, the Ministry of Forests, the Ministry of Agriculture, Fisheries and Food, and the local government. All of these referral processes are already in place now.
So are we suggesting that the provision of this kind of data with this new body is going to remove all of those existing facilities? If that's so, I don't see that clearly spelled out with respect to the consequential amendments. If that isn't so, then maybe the minister could more specifically talk about what's in mind here under section 8(2)(g), which says: "a description of the measures that the applicant will take in order to prevent or mitigate adverse effects." I assume these are adverse effects -- because we're dealing with everything here -- on the environment, on the economy, on society, on culture and on heritage. Is that what we mean by this?
Hon. J. Cashore: The purpose of the act is to avoid the very duplication the hon. member refers to. We canvassed that several minutes ago.
The purposes of this section is to make information available to the project committee so it can carry on with its work with regard to environmental assessment.
C. Serwa: Section 8, applying for a project approval certificate, is quite a lengthy section. It's quite an important section with subsections going through to (k). There's a substantial amount of difficulty in absolutely complying with the request. As a matter of fact, that's partially recognized, but section 8(2) says: "...a description of the project, including but not limited to...." It then lists a number of separate requirements. Obviously those requirements can be expanded by the executive director, or the minister, I presume. What happens, for example, if not all of the potential effects are identified in the application process? What happens if the outline of the proposed program of public information is amended at some subsequent time? Will the application be negated if the proponent fails to accommodate 100 percent with the requested information? The requested type of information, while it's perhaps easy to write down, is very difficult to provide, as the minister understands.
Hon. J. Cashore: I would say that the answer is no. As I've said before, the proponent will work with the executive director in trying to ensure that this information is in order. It will be done in a cooperative way. This is not put in place here to try to somehow stymie the applicant; it's put there to enable the applicant to put the information in place to enable the project review committee to get on with its work.
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C. Serwa: Okay. Just to look at one of the requirements, section 8(2)(i) says: "the description of public information or consultation activities undertaken by the applicant, and a summary of the public responses and of the issues identified." When we make that statement, it sounds like a substantial amount of work has already transpired, prior to the application being made. The concern I have is that if the proponent modifies it, perhaps on the basis of public concern, and changes his tack, with the way the public information or the consulting process is set up, at what point does somebody cry foul? Let's say it's an environmental activist group that has looked at the original application and seen it all laid out, and the proponent has not followed that original application, or perhaps amended it and done something that wasn't in the original application. At what time is that looked at, and what is its impact on the application?
[5:45]
Hon. J. Cashore: I think the member is referring to the process for amending an application, which is dealt with in sections 11 and 12. So in this section it's not the kind of material requirement that would result in a change to the actual application.
L. Fox: I have a question on section 8(1) with respect to the prescribed fee. In listening to the debate up to this point, it appears that after the first fee is going to be paid the project is going to be reviewed to determine what category of the review it would fall under. Does the minister envision a different fee for every stage that a project would go through so that at some point, if that proponent decided they didn't want to go any further, they wouldn't have to pay for the services they may not receive at different stages?
Hon. J. Cashore: I think that makes eminent good sense. I would assume that that would be the kind of wise thinking that would go into the development of the regulation, and I think we would hear that suggested time and again by stakeholders who would be consulted in that process.
G. Wilson: I have a couple of other questions under section 8. The difficulty that I have with this section is not so much as it relates to the terms and conditions, because depending on the project committee and on the insistence of the project committee, that may or may not be exhaustive, and it may or may not be within the realm of the applicant to meet those challenges.
I have some experience in this particular area through the development of the Sechelt Inlet strategy. We brought together a project committee -- almost exactly as it us described here -- to set out a land use plan for the Sechelt Inlet which would have implication on all of the existing operations and would act as an agent to start looking at the desirability of new projects. The foreshore advisory task force, as it is known, still operates; I still act as chair of it. It has worked exceptionally well. But it wasn't without considerable growing pains, let me tell you.
There are two things. When you require a proponent to bring forward data and information, and that person may be required to present that data and information, there must be some mechanism for that data and information to be validated, firstly; and secondly, there has to be some way to cross-reference what that applicant might bring in with other information that may exist on file and that may be relevant or pertinent to the final decision of the committee.
The difficulty I have with this is that it doesn't seem like there's a consistent set of requirements here. First of all, there's going to be a different project committee set up for each project. We'll get to that when we start to debate the project committees later on. I forget which section it is, but when we get to that section it says that there will be different committees set up. The requirement is going to be prescribed by the minister. The fee is going to be prescribed, and that's going to be different. The effectiveness of each of these project committees is going to be determined by the individuals that are there.
Of course, the other component that makes it significantly different from the foreshore advisory task force is that nowhere in this is the public involved; there is no direct public process other than by application through public advertisement. They don't actually get invited to sit on the committee to look at the areas in their community that may be directly affected. Could the minister just explain, within the content of this application, whether there is a consistent set of requirements that might facilitate such a committee? The committee is going to be pretty powerful; it's going to ultimately say yea or nay in the early stages of a proposed development. Where is there something in here that provides some security that there will be consistency in the requirements for each applicant and that there will be some opportunity for the data that is proposed and provided under section 8 to be verified and cross-referenced? The people appointed to this project committee may not have any expertise in this at all, and therefore may not be available to make those references.
Hon. J. Cashore: It's the environmental assessment office that makes sure that there's consistency of application. The project committee is always chaired by an official of that office.
There may have been another question there. I'm trying to recall what it was. I think it was with regard to when the public becomes involved. This is information to enable the proponent to put forward a well-rounded application before the project review committee. Once that is filed, it then becomes accessible to the public through the project registry. The public then has the opportunity to review that and raise concerns.
G. Wilson: I don't remember reading that in the act, but that doesn't mean it isn't there. Somewhere in here it presumably says that, because it seems to me that in your amendments, you struck out the sections with respect to public information and freedom of information. I defer to the minister if it is there. I just don't recall where it is.
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Hon. J. Cashore: It's section 12(4)(a).
G. Wilson: We can get to that when we get to 12(4)(a).
An Hon. Member: If we ever get there.
G. Wilson: Some member says: "If we ever get there." We on this side take that to be a great sign of hope that the government is going to see the light and pull this bill so we can get on with something else tonight, but we'll see.
I want to come back to section 8. I have one last question and then we will canvass that other area. In subsection (2), (j) and (k) seem somewhat redundant. If there is "a description of any discussions undertaken" by all of those various jurisdictions and the summary of the issues identified in the discussions referred to under subsection (j), why would you need to provide both? Why not just have (k), a summary of issues discussed? Is there a significance for those two?
Hon. J. Cashore: It is a fairly fine distinction, but it's not really redundant. The operative thing in subsection (k) is "a summary of the issues identified in the discussions." I think that (j) refers to the scope of those discussions.
J. Weisgerber: Under subsection (j) there is the reference to a "description of any discussions." Does the minister anticipate anything further than simply tabling documents that might have been exchanged between the proponent and various levels of government? It seems to me that to start providing a description of discussions brings you into hearsay evidence, at the very best. I'm curious to know what is contemplated by the use of the words "description of any discussions," rather than the tabling of documents.
Hon. J. Cashore: We're not getting into anything at this stage as onerous as dealing with evidence. It's simply documentation that assists the proponent to interact with the executive director, in developing information that would then go before the project committee -- to get started on the first phase of the process. This isn't the type of information that would be tantamount to giving evidence. If the proponent was a little unclear as to just how detailed he or she had to be in describing the discussions and what was discussed at those meetings, then I'm sure the executive director would provide a great deal of reassurance.
I think it would primarily be an outline of those kinds of representations that the proponent would have made in identifying and contacting those various agencies -- information that would be helpful in getting on with the project, and very much in the interests of the business. So I think the proponents in this case would not even see this as being a redundant process, in terms of trying to get that information in place. Certainly the agencies they've met with, the nature of what was discussed at the meetings and what they found out that had to do with the project would help to inform their information, and that would then go before the project review committee.
J. Weisgerber: If I were a proponent entering into this process for the first time, and if I read this legislation, looked at section (j) and saw that I was required to provide "a description of any discussions undertaken by" myself, as the applicant, with any one of the agencies listed, I would be concerned that at some point later in the process I would be exposed to the accusation that I had not provided a description of any or all of the discussions that I might have. I am curious to know if the minister anticipates a conversation across the desk -- in other words, a verbal report? A description suggests to me that there would be a report tabled that would include a description.
Hon. J. Cashore: I want make it very clear: we are not talking about the effects of the project at this point. We are talking about a preliminary list of items -- information that would be needed to assist the project review committee to get on with the steps that have to do with whether it is completely dealt with at that phase, or whether it needs to go to phases two or three. So it is certainly not the kind of a situation that would require anything more onerous than that. Given that it would be standard practice to provide a guide to proponents with regard to the kind of information that would be looked for, I think that would be helpful. So would the very regular conversations and interaction that would take place between the executive director and the proponent. That would be an office to help the proponent put together the best possible representation of their project at this phase.
J. Weisgerber: I am trying to understand. I find it somewhat unusual that the minister would refer to legislation as a guideline for applicants. Indeed, legislation is often interpreted quite literally. I am trying to get a sense of an applicant, perhaps with a relatively small project, and perhaps preparing for this meeting with either the executive director or the project review committee.... I am unclear at this stage whether the meeting would be with the executive director, a committee or a subcommittee, and whether we are talking about evidence that might be verbal or otherwise.
Hon. J. Cashore: We're not talking evidence; we're talking information that would be put forward by the proponent. The conversations between the executive director and the proponent would be open, and it would be an interactive consultative process. The project committee would not come into effect -- probably, I'd say, in most instances -- until the executive director and the proponent had a conversation. The executive director would say something like: "Well, yes, that looks pretty good. I think we're ready to take that forward now." It would be that kind of interaction. The executive director at this stage would be in a very helpful role of assisting the proponent in getting together the required information. Also, I think he or she would have a very important responsibility to say
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to the proponent: "No, you don't have to go that far. If you're going to get all that information, that's not required at this point." I think it could be helpful in both ways.
[6:00]
J. Weisgerber: We're now dealing with applying for a project approval certificate. Is there any hope at the successful conclusion of this process, as detailed in section 8, that approval would be given to a relatively small project? Is there any hope entering into this process that this helpful individual is going to say, "I've heard enough now, and I'm satisfied that the project would be able to go ahead," and there will be no further requirements?
Hon. J. Cashore: This is the entry into phase one of the process. There are three phases, and this could result in a decision of the government to approve the project. It could lead to that in this phase, and part of that is outlined in section 23. We'll be getting into more details of the tack that the hon. member is now following when we get into section 23. This is the initial step into the first loop in the process, and it is the part of the process in which most of the projects would come in and go out.
I would also point out that in legislation some of the time lines will be subject to regulation, but in this case there is a 30-to-45-day time line for the work of the project review committee, and then after that there could be some further time when it's before government. At the conclusion of that review of the recommendations of the project committee by government, there would then be a decision by government as to whether or not to issue the certificate at that time -- this will be gone into in more detail in a subsequent section.
J. Weisgerber: If I am understanding the minister correctly, a fairly modest proposal taken before either the executive director or the committee may well be all that the proponent is required to bring forward in order to obtain this favourable decision 30 or 45 days down the road. Is that correct?
Hon. J. Cashore: Yes, and thank you for that question, because I think it helps to clarify this section. It very well could be the case that the information brought forward at this stage would be all that would be required. Experience will show whether that indeed will be the case in a number of instances.
J. Weisgerber: Do I understand also that if it's a fairly modest proposal, phase one is all that is going to be required, and that the executive director is going to decide that no further information is required of the proponent? Is that fair?
Hon. J. Cashore: Yes, that is fair. I believe that experience will show that it will be the only phase required in a very large number of the projects.
J. Weisgerber: That brings me back then to my initial concern about a proponent coming forward who is required by legislation to provide a description of any discussions. Unless this is documented in some way, either by a written presentation by the proponent or by some record kept of the conversation between the proponent and the individual to whom they are making the presentation, it would be very easy for a municipality, a regional district or a first nation to come forward and say: "The proponent didn't reveal to you all the details of the discussions that we had." If his or her application or presentation was incomplete, there would be grounds to ask that the project certificate be withdrawn, perhaps partway through a project.
Hon. J. Cashore: Once a project certificate was issued, it would not be withdrawn. There is ample opportunity in this process for those representations to be made in a timely way.
J. Weisgerber: Then it seems to me that built into this process is a temptation to be less than forthright and to give a verbal presentation providing as little documentary evidence as you can get away with in the hopes that you could get a certificate which the minister says would never be overturned, even if it turned out to be the case that the applicant was less than forthcoming with the information they made available.
Hon. J. Cashore: The various entities one would meet with at that stage will have representation on the project committee, so they'll be cognizant of those circumstances. I would argue that, on the contrary, it would behoove the proponent to be forthcoming with information. Presumably, a good proponent who is going to be a good business for B.C. is going to be forthcoming with the appropriate information. That will produce the kind of interaction that would work the most effectively. I think that would be in the interest of the proponent, given the way in which this process is outlined.
J. Weisgerber: I would argue that it would be quite possible for a proponent to have some fairly lengthy discussions or perhaps even correspondence -- but particularly discussions -- with a federal agency or a federal Crown corporation. I question whether it would be very likely that a representative of that agency would be there at the committee hearing, or whatever process this relatively modest project went through.
This is the area where I think the uncertainty exists. We're unclear about the size or the scope of the projects that are going to have to come forward. We're unclear about the kinds of information that that proponent of a small or large project would have to provide. I think that, at the very best, the wording in this section is so unclear as to put both the proponent and the process at some risk of non-compliance with what is a law. The minister talks about it being a guideline, but we don't come into the Legislature to debate guidelines; we come into the Legislature to debate legislation that becomes the law of the land. I still must confess that I am unclear
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about what kind of a process this section requires a proponent to adhere to.
Hon. J. Cashore: This process requires the proponent to put forward the information that is necessary for the project review committee to do its work. When the project certificate is issued, if it is issued at the end of phase one, it would be a different document as a result of having completed that process. There would probably be some requirements outlined in that document that resulted from effective use and follow-up on the information that is put forward here. We are not talking about this as being the legal document upon which the proponent would then proceed. That would be a document resulting from the conclusion of this part of the process, which is phase one. It would outline the terms and conditions for proceeding with that project.
With regard to the point that was raised about the representation of, say, a federal Crown corporation, the federal government will be represented. That representative will have the responsibility to be cognizant of those issues or concerns that have been raised in the process by various federal agencies, including Crowns.
J. Weisgerber: I'm not nearly as satisfied as the minister that the federal government is going to want to have a representative available to review every project that might be put through this process. I suspect that the federal government, on projects having interprovincial or international implications, would be quick to get involved, but I'm not at all certain that a project that has only provincial implications will attract the attendance, or the membership on a committee, of the federal government.
Hon. J. Cashore: On the contrary, it will attract federal representation. It does now, under the major project review process which the former government put in place. The federal representative shows up....
Interjection.
Hon. J. Cashore: Whether it's major or minor, the federal party shows up and fulfils that part of the responsibility. That works now under a process presently in place, which this bill is seeking to bring under this umbrella.
J. Weisgerber: I don't want to belabour it, but this is a key part of the legislation. If the federal government does in fact have a representative at each and every activity.... We have been unable, to the best of my knowledge, to determine the size of project that is going to be the subject of this legislation. I'm not at all sure that the federal government will always have a representative there. But even if we concede, or assume for the purposes of argument, that they will, that representative would surely be in no position to be aware of all the conversations and discussions that the proponent might have had with any branch or Crown corporation. It's unreasonable to expect that a federal government representative is going to sit there and say: "Oh no, Mr. or Ms. Proponent, you had a conversation with X, Y or Z agency, and we want to know more about that." That's just not realistic. We are surely not going to be faced at the early stages -- with what may be very modest projects -- with an array of federal and provincial bureaucrats who are prepared to argue with the representations the proponent might make.
C. Serwa: I guess the government plans on concluding section 8 prior to recessing for half an hour. I don't know how long that will take, but just for the information of the Chair, I am going to be speaking on this section, in case anyone was wondering.
I guess we're speaking from different aspects of concern. If this piece of legislation had been entitled -- section 8 brings this to the fore -- "Major Project: Environmental Assessment Act," then I think we would have been comforted in what it's proposing to do. I think that should be the major issue.
As I listen to the minister, I think that he is normally responding to questions with the idea of the scope and size that we are fundamentally talking about: major projects -- environmental assessment review. Nowhere in this legislation.... The concern with section 8 is that, with all of the requirements a small business individual might have -- and when I say might, the "might" only takes in a period of time until all projects will have to have this review.... We're talking about time to a degree, but in section 8 we're talking about complexity of information and the substantial quantity of information required. The cost factor to small business is prohibitive when we're talking about having to comply with this section. It's totally inappropriate. Fundamentally, a great deal of the discussion that will ensue on section 8 and subsequent sections will be because of the lack of parameters on scope and size: the amount of flexibility that the minister has, that cabinet has and that the executive director has to identify projects which will have to comply with the requirements of section 8.
[6:15]
Fundamentally, I think we all want to see job opportunities in the province. But the lack of willingness on the part of the government -- and that is clearly evidenced in section 8 -- to identify the size or the scope of projects creates a great deal of uncertainty. I don't know if there is anyone in this room at the moment who would start an enterprise that would have to comply with this; it is entirely too onerous. If it's a major project, that's an entirely different can of worms -- there's no question of that. It has the potential of major environmental impact in a negative fashion. They have the ability to finance and seek out the type of information that the minister is requiring, and clearly everyone is supportive of that.
But when you look at section 8, it becomes entirely too costly and onerous for a small business to try to look for upfront money, faced with the uncertainty of ever succeeding and the necessity of looking for more information and hiring additional consultants in a wide variety of fields, and in the end not knowing whether it's going to fly or sink. How are you going to get
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financing for that project? How are you going to get jobs created in the province? Section 8 sounds very nice and warm and cosy, and we're sort of given an illusion of comfort. But the reality is that it's so nebulous and broad in its context that it captures small businesses -- and they create the majority of jobs in the province. Through that uncertainty and cost, we're going to negate the opportunity for a strong economy to do all the things that the minister recognizes are important in the province. That's my fundamental concern.
I hope the minister would look at identifying more clearly the scope and size of project he's discussing, because clearly in our discussions we're thinking of two different things here. The legislation can apply to all projects, and that's clear.
Hon. J. Cashore: The scope and size of the project is in section 3, where you identify reviewable projects.
I want to say to this hon. member that he makes the point that this is nebulous, but this is no different in essence than the provisions in the mine or energy development or major project review processes put in place when his party was in government. He would have to apply the very arguments he's making to instruments that his own government put in place.
I repeat that this is a standard, appropriate part of the process at which we begin to review those projects, very many of which will not go beyond phase one.
C. Serwa: The minister referred to section 3 and so will I, just very briefly. It does not do what the minister indicated. The section indicates a very broad or expansive series of categories and has nothing to do with the size or the scope -- that's a fundamental concern. When I referred to other aspects of section 8, it was an attempt to try to get the type of material that is being asked for in legislation. After the legislation is passed, it's the letter, not the intent, that we have to look at, because it's the letter of the legislation that endures. But when you look at the letter of the legislation, it tends to be very nebulous. It specifies the type of information -- I'll grant the minister that -- but accumulating that type of legislation is exceedingly difficult, and that's where the problem lies. The expectation is that once legislation is passed and approved, obviously it has to be adhered to. It becomes part of the law of the province, and it has to be acknowledged and complied with. But the selection of that information is exceedingly difficult. That's the problem I have with this.
I think the minister indicated in earlier discussions that this would be subject to a review throughout the province, and that perhaps it would be fine-tuned and amendments brought in. I wonder if the minister would confirm that this process will in fact take place, that it will be subject to review and that, if required, amendments will be brought in probably for the session next fall. It's to a degree speculative, but I'm presuming that the public is going to have a widespread opportunity to comment on items such as section 8, which is very critical to this whole parcel of legislation. I would like the minister to respond to that, please.
Hon. J. Cashore: I would be glad to discuss that with the member, but would remind the member of the answer that I gave in the House during the debate on an earlier section. I don't think I need to repeat that at this time.
V. Anderson: A few minutes ago the minister implied that after this had gone to the executive director, there would be a project acceptance certificate. But he also commented that it would go from the executive director to the government. I followed through to find out what that might mean. I find that under section 10 it goes to acceptance by the executive director. In section 13 it is then filed with the registry. It goes from there to the project committee in section 17. In section 19 it is referred to the minister and the responsible minister -- who is different from the minister. After all of these other stages have been gone through, there is the issue of a project approval certificate in section 23. Then in section 39 there is a referral to the board. In section 42 there is a referral to the Lieutenant-Governor-in-Council. In sections 51 and 52 is a referral to the Environmental Assessment Board.
The implications of this, as they follow through.... At what stage after section 8 does a person actually get a project certificate? When they come to the executive director and it has been reviewed under section 8, do they get a certificate and it goes no further, or are there other steps still to be followed through?
Hon. J. Cashore: I have made it very clear that section 8 is simply the outline of the information that needs to brought in in consultation between the executive director and the proponent, in order to give the information to the project review committee.
I think that the hon. member had much of it right in describing the process, but this is the first phase of the process. During this phase, the project comes in. After it goes through certain steps it will then, in many instances, receive the project certificate without requiring some of those phases that the hon. member referred to. Some of the points the hon. member made are in phases two and three of this process. Again, it is true, and nobody has tried to hide the fact that this is the initial stage of bringing the content of the application before the process. Then there is an interaction between the executive director and the proponent. Then that comes before the project committee, and then it does go before the minister and the responsible minister, and forward in that way.
V. Anderson: I am trying to clarify it, because I heard the minister saying that it would be 30 to 45 days, and that's really for that stage. We are talking about section 8. But by the time it goes to the other stages, I can see at least a minimum of six months, even if it gets approval after it goes through the minister and the other minister.
Hon. J. Cashore: I have repeated this several times. I have answered this question, without being asked, several times. If you review the record, I have. It is 30 to 45 days before the project committee, and then
[ Page 8897 ]
there will be an additional time when it is being reviewed by government. That amount of time is not specified. That is the truth: it is not specified. There will be a reasonable amount of time that government will have to review the recommendation that comes forward from the committee before it proceeds. That's a pretty standard process. Again, it behooves government to make a decision in a timely way, because that is in the interests of the economy of the province.
Section 8 approved.
Hon. J. Cashore: I move that the committee rise, report progress and ask leave to sit again.
Motion approved.
The House resumed; E. Barnes in the chair.
The committee, having reported progress, was granted leave to sit again.
The House recessed at 6:28 p.m.
The House resumed at 7:03 p.m.
Hon. J. Cashore: Hon. Speaker, I call committee on Bill 32.
ENVIRONMENTAL ASSESSMENT ACT
(continued)
The House in committee on Bill 32; E. Barnes in the chair.
On section 9.
Hon. J. Cashore: I move the amendment to section 9 standing in my name on the order paper.
[SECTION 9, by deleting the proposed paragraph (a) and substituting the following:
(a) the executive director may make available to the proponent the information, analysis and plans, and.]
This amendment removes the phrase about the parts of the information available to the public without a request for access under the Freedom of Information and Protection of Privacy Act. The new subsection more appropriately describes the nature of the information which the executive director may make available to the proponent. The amendment is necessary in order to allow the executive director to make a wider range of information available to the applicant in order to assist the applicant in the preparation of his or her application. The information made available to the applicant under this section will continue to be subject to the general provisions of the Freedom of Information and Protection of Privacy Act, which relates to the release of information to the public.
On the amendment.
V. Anderson: The phrase "may make available" seems to be open-ended. If there is information which would be helpful or relevant to an applicant, is there an indication here that on some occasions the executive director would not make it available? I'm wondering about the discretionary power and whether it is solely up to the executive director whether he makes it available or not. Sometimes the applicant who needs the information may not even know it's available unless the director indicates that it is.
Hon. J. Cashore: The executive director will make available all information that he has.
C. Serwa: The amendment was a rather interesting change. After moving the amendment, the minister then basically referred to the qualifications that exist in the unamended section. Under the amendment is the Freedom of Information and Protection of Privacy Act as readily available as it was in the original section? The concern I have is with arbitrary decisions because of the "may," where the minister feels he does not have to be responsible to the Freedom of Information and Privacy Act. The reality is that all government information is subject to that particular act. Why have we gone to an arbitrary "may"?
Hon. J. Cashore: As I said before, the reason this amendment was brought in is that the original wording was causing confusion among the various parties. We have consulted with the stakeholders, and it was universally suggested that this amendment would be a good idea in the interests of clarity and simplicity of language. We did it for that reason.
With regard to "may" instead of "must" in (a), it's wording that is carefully put in place. Recognizing that we expect the executive director to make available all information, there could, however, be information that the executive director is not aware of. There could be information that is not completely in the hands of the executive director at the time. This will be done to the best of his or her ability, but it recognizes a little bit of leeway here.
C. Serwa: With respect to this particular section, the change of perspective on that is interesting. This is of some concern. As the minister indicated in his response, the executive director may not be aware of all of the information on hand. Consequently, they've utilized "may" here. But on the other hand, as we talked about earlier, the proponent shall make all of this information available that is requested by the minister. Why the double standard? The proponent will have as much difficulty acquiring that information, but there is no reasonable effort contained in the request. It indicates that they must comply with the request, but we give licence to the executive director with a "may." Why isn't there a consistent approach? In section 9 as amended, why not relate it to "as could be reasonably expected," or phraseology similar to that, so that there is a clearly expressed intent of obligation, but it is not so restrictive. The "may" gives a great deal of latitude. It may be that the failing to provide information is, in all honesty, simply not being aware of it, as the minister suggests. It could quite conceivably be the withholding
[ Page 8898 ]
of information, and there is nothing encouraging the voluntary disclosure of information on hand in projects of a similar nature or category.
Hon. J. Cashore: The language used here is to avoid putting the executive director into a legal box. Given that he or she is carrying out the duties to the best of his or her ability, there could be an inadvertent omission. It's to protect that office in that instance. Everything would be done to avoid that happening, but it is a protection in the case of a possible unintentional failure to provide information, when it turns out later on that that information was available.
C. Serwa: I respect the response from the minister, and I understand the limitations. That's a practical response.
My Concern Was: why shouldn't similar latitude be given to the proponent, who is faced with the difficulty of acquiring a form of information that is very difficult to access? In the previous section we referred to "must" rather than "may," and it is sort of a double standard that makes me very uncomfortable. I recognize that this piece of legislation has been drafted by civil servants -- staff and members of the bureaucracy -- and I can clearly see, as evidenced in the amended section 9, that latitude and consideration has been given to the bureaucracy. But I do not consider it fair and balanced and reasonable when, in an equally difficult and trying task of trying to provide information to the executive director, that same latitude of reasonableness hasn't been extended through to the proponent. None of that enters into it. On the one hand, they "may" -- or, as obvious, "may not." On the other hand, they "must," with an exceedingly difficult demand on that individual. It seems to me, on fairness and balance, that we should be somewhat parallel with the expectations of the executive director, who is a professional individual, and the concerns of the proponent. That was the point I was trying to make to the minister in my statement.
Hon. J. Cashore: We are referring to a previous section of the bill, but I take it the hon. member has raised this for the purpose of comparison. We are dealing here with the term "must" with regard to the proponent, with a body of information that is clearly available, where the executive director has worked with the proponent in putting that together, and it's saying that that information must be made available. So that's kind of comparing apples and oranges in those two situations. This must be provided in order to get on with the preparation of the work of the project review committee.
C. Serwa: It seems to me that there should be some flexibility in "must reasonably be provided." In the way it was described, there is no flexibility. The requests are stated, and it's pretty firm and absolute. I guess that's my concern on that. I think we have made the point, and the minister has responded. I'm not comfortable with it, and the minister is defending the situation. So we'll just leave that. We have amplified and cleared that.
[7:15]
In this particular application, the potential exists for a similar reviewable project to, perhaps because of the situation, comply with all of the requirements of the executive director with no expenditure. That's indeed a possibility. The initial proponent has now had to carry a very substantial amount of overhead, and a subsequent application by a similar proponent later on down the line has the benefit of moving that project forward with very little in the way of capital outlay to acquire information. It doesn't seem to be quite as reasonable and fair that the subsequent proponents should get away virtually scot-free, while the pathfinder, if you can call the original proponent that, picks up the lion's share of the cost. Is there any mechanism to compensate those who have preceded, with a great deal of capital expenditure, and provided the information that the executive director requires?
Hon. J. Cashore: When the fees are prescribed, that should be taken into account.
G. Wilson: I know that the amendment was canvassed before I came in, and that the minister indicated that it was at the request of some group that he consulted with. But I notice that under section 9(a), the amendment essentially removes the availability of the information to the public. We're left with the executive director making parts of the information, analysis and plans available to the proponent, but it removes "...are available to the public without the necessity of request...." If that's picked up elsewhere, could the minister tell us where?
Hon. J. Cashore: That was one of the confusing aspects of the previous wording, because it is available to the public by virtue of being on the project registry. This was a universal concern of the stakeholders we consulted with in all aspects of reviewing this issue. Their feeling was that we need to have a much more concise statement here, so we did that in the interests of simplifying the language. The Freedom of Information and Protection of Privacy Act provisions apply, regardless, and the public has access to the registry.
G. Wilson: Under section 9(b) -- and we will deal with this project registry business when we get it in section 61, or somewhere down there -- it says: "...at the proponent's written request may specify any part of the information, analysis and plans as acceptable in fulfilment or partial fulfilment of any of the requirements of section 8."
Is it anticipated that if someone pulls an application out of the project registry, looks at all of the detailed work provided by some other applicant, and that other applicant is not given a licence or voluntarily decides not to proceed, on the provision of that information to the new applicant, they might then use that information as a means of fulfilling the requirements under section 8 through a new project committee? If you look at these committees -- and we'll deal with that when we get to that section, which comes up in a little while -- it looks like you could have somebody take advantage of an historical record, then go forward and under a new
[ Page 8899 ]
committee have a project approved that previously was denied.
Hon. J. Cashore: Yes, it is possible.
G. Wilson: Essentially, the proposal here with respect to the existing information is that.... I am trying to understand the thinking of the provision of making this existing information available to the public. Through this registry we are essentially creating a public log, which acts more or less as a depository of information. As applications come forward, some or all of that information may be accessed and used without duplication. Is that the intention?
Hon. J. Cashore: Yes. This is public information, made available to the public and accessible by the public.
G. Wilson: If we are looking at an investment proposition in a business that might be in a highly competitive situation, what would prohibit...? With the couple of applications that I've been involved with, both applicants were looking at similar projects and recognized the market wasn't going to withstand two such projects. They were both under considerable time constraint because they wanted to beat the other to the deadline. Surely, there has to be some provision for confidentiality of the discussion underway with the government. By having this public registry, there has to be a sensitivity about private information that somebody might not want to make available. Under section 8, it says you have to provide a full description of existing environmental.... We could argue that that may not necessarily be controversial, but it could be. It talks about how the major components of the project are put together. It talks about a construction plan, a project plan and a timetable for completion. I would imagine that financial information is going to be necessary to make sure that stable financing is taking place. If you've got a problem with confidentiality of documents, what check is there in this process to prevent a competing applicant from taking advantage?
Hon. J. Cashore: Very specific criteria are outlined in the Freedom of Information Act, which covers instances in which information can be protected. The process for deciding what information would be classified is subject to the provisions of the Freedom of Information Act, which is an act that applies to this legislation.
G. Wilson: That's interesting, because that was my first reading of this bill. But I notice you've removed the reference to the Freedom of Information and Protection of Privacy Act in your amendment.
Hon. J. Cashore: The answer is: precisely. The feedback that we got was that the wording was confusing, and since the Freedom of Information Act applies anyway, it was pointed out that it was redundant to put it into this section. Obviously, that advice was well taken; it is not specifically placed within the act because it automatically applies.
G. Wilson: Recognizing that that legislation will affect this entire body of legislation -- and I can accept that -- is the discretion ultimately going to lie with the executive director?
Hon. J. Cashore: The proponent would have to demonstrate why information should be withheld, and the executive director would have to make a decision on the basis of criteria in the FOI legislation.
Amendment approved.
Section 9 as amended approved.
On section 10.
G. Wilson: I understand that section 10, the acceptance of the application, says that you can't be denied. Once the applicant meets the requirements for section 8 and fulfils the list, the executive director cannot deny an application and has to provide written notice that the proposal has been put forward. The language is a little confusing here. Section 10(1) says: "If satisfied that an application for a project approval certificate meets the requirements of section 8, the executive director must accept the application and deliver written notice of the acceptance to the project proponent." Does this mean that once that application is in place, before any project committee or anybody else reviews this information, the executive director has exclusive power to say whether this application meets the requirements?
Under section 10(2), it says, once again: "If the executive director considers that an application is deficient...." It seems that an awful lot of power is centred in the hands of one appointed civil servant who can either stop a project or allow a project to go before there has been any review of it at all, simply on the basis of accepting or denying that an application meets the requirements of section 8.
Hon. J. Cashore: All this section is doing is saying that it has met the requirements of the act and can now go forward for review. It's simply a stage in moving it forward for review, and it defines the transition between the requirements in section 8 and actually moving forward, with those documents having been appropriately completed.
G. Wilson: That's an awful lot. All that's saying is that it's either going to go forward or it isn't going to go forward. What I am saying is that this act empowers the executive director to be the sole arbiter of whether the original application meets the conditions under section 8, notwithstanding the fact that we haven't seen the full regulations that govern section 8, and that this appointed executive director can say yes or no.
It suggests under section 10(1) that the executive director must accept the application and deliver written notice if it fulfils the requirements of section 8, and has
[ Page 8900 ]
the exclusive right to say that the application is deficient because it doesn't meet the requirements. It says that he or she can "withhold acceptance of the application until the proponent remedies the deficiency." So this one person seems to be a gatekeeper and has the power to literally stop a project before a project gets going, even with the initial application.
Hon. J. Cashore: A gatekeeper is a good metaphor. I'd also say in some sense a shepherd.
In the discussion we had on section 8, we pointed out that there would be a great degree of interaction between the executive director and the project proponent. In effect, the executive director would be assisting the proponent. I would expect meetings, phone calls and those kinds of communications so that it would be in a consultative format. The executive director would be able to say: "Well, now it looks like it's ready to go. I am now prepared to issue the documentation that says we are now ready to take this forward to the project review committee."
[7:30]
The project committee would not have been struck by this point, but it would be very soon after this point. In the meantime, the executive director may need to talk to representatives of the various aspects of representation on the project committee -- the federal government, for instance -- with regard to certain questions. "Will you be requiring more information around this issue? Will you require more information than we now have?" There will be an interactive process leading up to the point at which section 10 kicks in, the executive director is satisfied with the application and it moves forward to a further stage.
G. Wilson: This is enormous power to put in the hands of a senior civil servant. There seem to be provisions on a number of regulatory authorities, and I recognize that the intent of the bill is to try to mitigate against environmental damage and those kinds of things. By putting this kind of power into the hands of a civil servant, it's reminiscent of the level of power that's put into appointed boards that review things like liquor licensing and motor vehicle and truck licensing -- those kinds of authorities where a business wants to get going. Normally, a government-appointed authority or board or an agency of government has the right to review the application and say yes or no. In all of those instances -- we just went through a couple of bills modifying them under the Attorney General's office in this session, and we had some rather heated and lengthy debate -- wherever an appointed board or agency of government has authority to review an application for licence approval and has the right to deny it, there should be a right of appeal. I'm not talking about when you get to the stage of having your project committee set up -- we'll deal with that when we get there, and we have some very real concerns about that -- but here a person can simply say no.
I have three questions to the minister. Is there a right of appeal if the executive director constantly says, "I'm sorry, your application is deficient," and simply refuses acceptance? Can somebody appeal to a higher authority? Secondly, section 10(2)(a) says that the executive director has to provide written notice. Does written notice have to include written reasons? In other words, does he have to put his reasons in writing as to why the project is deficient? Is there a written record of what is wrong with it, so that that can be corrected? The third one -- which I think is equally as important -- is with respect to section 10(4). If there is a prescribed time period, who sets the expiration of that time period? Can a stall by either the applicant or the executive director negate that period and therefore put somebody in limbo forever?
Hon. J. Cashore: There is no appeal with regard to this. It would be available through judicial review if that was required, which would be highly unlikely. The answer to the second question is yes, the executive director would be required to give reasons and place them on the public registry. With regard to the third question, the time period will be set by regulation. We have already pointed out that there is a time period set out at the next step when it actually comes before the project committee. That is set in legislation.
G. Wilson: The difficulty is that, first of all.... On what grounds could somebody formulate a judicial review if you are dealing with discretionary powers of an appointed civil servant and a set of regulations that may simply provide for subjective analysis of a set of conditions set out in an application? This executive director has exclusive authority and power to simply say: "Your application is deficient for these reasons." I don't see anything here that says they have to provide written reasons. I know that has to happen later on with respect to what's heard before the committee in the larger review situation. Unless I've missed something in the bill, I don't see where the executive director has to file written reasons explaining the deficiencies of an application with any registry. I don't know where that would be. I know that happens at the project committee stage.
Similarly, how long can an executive director stall an application from getting through even the most primary stage before the person has a right to some kind of decision by another agency -- the minister or whomever -- to get them past this process?
Hon. J. Cashore: It's in the interest of the executive director to get through this process as quickly as possible. If the executive director was being frivolous in the application of his or her work or in carrying out his or her responsibilities, that would come to the attention of a number of people at a very early stage, who would be very concerned about it. As I have said many times, at this stage the executive director is in the role of assisting the proponent. He's trying to shepherd the proponent through this stage of the process and assist in getting the right information in place. There will be a guide that will assist with that, but the executive director will also assist with that process.
With regard to the question about where is it stated in the act that notice of deficiency must be in writing, it says very clearly in section 10(2)(a), "...deliver written
[ Page 8901 ]
notice of the deficiency to the project proponent...." Written notice of the deficiency means....
G. Wilson: No, it doesn't.
Hon. J. Cashore: Yes, it does, hon. member. It means to describe the deficiency. That's what written notice of the deficiency is, and it has to be in writing. That's exactly what that is, and it's very clear.
Interjection.
G. Wilson: I hear the member for Nanaimo say: "If you're not sure, quote Hansard for future reference." We will indeed, because written notice and written reason are two different things. You can simply provide notice that it is deficient, or you can provide....
Interjection.
G. Wilson: Yes, you provide written notice of a deficiency. You can provide notice that states: "You are hereby notified that your application is deficient, therefore your project won't proceed."
Interjection.
G. Wilson: I hear the member for Nanaimo, who I wish would enter into this debate. He's suggesting that he doesn't want to steal my moment in the sun. I'll tell you, if we keep debating this legislation ad infinitum, none of us are going to get many moments in this summer sun.
The point that I have some difficulty with is that you've appointed a senior civil servant who has that kind of power without some means of getting around it. I have been involved at the municipal level of government where a project proposal will often come forward that has opposition at its initial stage. Sometimes you have members within a planning staff, for example, who may personally have a philosophical position or may be directed by a board -- i.e., a senior level of government -- that certain kinds of applications will not be entertained, even though the person who owns property may have a legal right to pursue that on their property. These are very difficult and contentious issues.
People may have a legal right within a very lax set of bylaws, or in this province within a very lax set of laws, that allows them to proceed in an activity that is deemed to be undesirable but not illegal. If you put a senior civil servant in a position where they have to make political judgments or decisions without some form of recourse or appeal for an applicant, you're setting yourself up for a very difficult problem. They're going to do it one of two ways. The executive director may have to act as a gatekeeper, in which case a lot of the material that comes before that executive director will be deemed to be deficient under section 8 to stall a person beyond their ability to do it. I have a case in point. There was a golf course that people didn't want proposed on a parcel of land. The land was zoned for it. From every legal point of view it should have gone ahead. The person had financing in place and the subject-to clauses of that financing meant there was a time restriction. That time restriction was quickly coming up. The people who were in the approval process knew that if this was delayed through that stage, the financing would be removed and the problem would go away. Now that's a terrible way to deal with an applicant fairly. You shouldn't do that, because if you don't want it, there should be good, sound, logical reasons why it shouldn't happen. You shouldn't essentially stall a person out of their right to do business.
Interjection.
G. Wilson: If we're hearing that the written notice provides a written list of those kinds of conditions, then that might alleviate some of my concern, because it would presumably allow, under the amended application -- which we'll get to in a few minutes -- for those specific items to be addressed. But at some point there has to be a termination on what this executive director can introduce. So I just don't see how a judicial review is going to work in this instance. I don't know what you would take into that process to hope to win on.
For the second part of what I'm saying, I guess I'll go directly now to subsection (2)(b): "...withhold acceptance of the application until the proponent remedies the deficiency." One has to assume that there is an ability to remedy the deficiency. That may not be the case if those deficiencies are of a broader nature and are compounded by the fact that what's being applied for simply is unsuitable. If we were to use urban land development as a case in point, there may be, especially on rural land, some very real concerns about the septic capability of the soil and the effluent, in terms of what we're going to do with sludge or other material, or what we're going to do with the water supply, or whatever those kinds of things may be. If there are physical constraints to the application, where is that heard? Is the executive director going to be able to say: "Well, I'm sorry. I've reviewed the conditions under section 8, and, under subsection (2)(f), where we require identification of potential effects of the project, we simply deemed that your application is not adequate. You haven't accurately identified the effects of those projects, because we have information to the contrary. Therefore your application is deficient in that sense."
You have stalled the project there without any kind of public hearing process at all. I mean, they can't proceed any further. If the executive director has those powers to withhold acceptance of those applications, I would judge that you're setting up this executive director for an almost untenable situation in some instances. I'd like some comment from the minister on this.
Hon. J. Cashore: All the executive director is dealing with is the content of the response that the proponent makes to those various parts of section 8. He's dealing with the application; he's not dealing with
[ Page 8902 ]
the project itself -- that is subject to a further step when it comes before the project review committee.
With regard to an earlier point the hon. member made about the time period, the time period is prescribed by regulation, so that would be spelled out in that consultative process.
On another point the hon. member made earlier, I would just point out that the project has been identified in regulation, so it's not a matter of some arbitrary decision: "Okay, we're going to include this project." It's already been defined in regulation.
V. Anderson: It seems to me that one of the questions here is the opportunity of appeal when needed. All of us have had dealings with government members, officials or private businesses where there is a breakdown in communication between two people, or where the communication process just doesn't work. So you're stymied then. If the minister simply added a clause here that said an appeal may be made to the minister, or whoever else is applicable, there would be another provision for that person to deal with a breakdown in communication. It is significant, because the whole business and the whole project are under consideration, and there should be a way for someone else to review that at some time, whether it is the minister or another branch of the government. Where communication has broken down, and the person has done their best, there should be some way to appeal that.
Hon. J. Cashore: We want to avoid exactly what this hon. member is suggesting: that we politicize the process. It would politicize the process to refer it to the minister -- at least, if that was in here, it would be subject to that accusation.
The issue of appeal in this legislation is one of the generic concerns with regard to the different aspects of this bill. Putting in an additional appeal process -- in addition to the processes already available through a judicial review -- is to put in the opportunity for other time-consuming processes, when the exercise is to try to move the project through as quickly as possible.
I guess the final point -- and I won't repeat this again -- is that this section is not the type of material upon which you would have somebody filing an appeal. That would possibly be a consideration at some of the decision-making levels, where it is decided whether there would be a project certificate, or whether it would be referred to another phase. That simply is not the case in this instance.
G. Wilson: I don't know how much experience the minister has had as an applicant trying to get a project approved by government, but I can tell you that one of the areas that we fought long and hard for in local government was to get local government involved in the approval process. To the extent that they are being invited to sit in these committees, I think that is a good idea. The difficulty, however, is that if there is a final decision made by a civil servant.... Let's take a look at an application that may be there right now; let's use a case in point. We will use a controversial one in my riding. I was going to use one that might have antagonized the minister, but I will try to find one that doesn't so we can get through this.
[7:45]
There is a marina being proposed for an estuary area in the Davis Bay-Wilson Creek region. That marina won't be under this, granted, because it is being proposed by the Sechelt Indian government district, which isn't subject to this regulation, but let's just assume for the moment that they are. That proposition, as it currently stands, has gone through a whole host of different government agency review processes and referrals. At some point, some individual has to make a decision on whether or not that should proceed to the next stage. That one individual can hold up or frustrate that project -- if they deem it in the public interest that it not proceed, or if they deem that there is something in the legislation that doesn't permit it -- and by doing so, can make it simply financially not possible to proceed. My concern is that if you replace that -- and I understand that this does replace that, although I don't see the consequential amendments that say it does.... I will be anxious to get them, when and if we ever get to the end of this act, to try and sort out what levels of bureaucracy and levels of government we are removing to try to make this thing work more smoothly. My concern is that if you have a civil service under the existing system that is empowered to be able to frustrate a project on the basis of information that is available -- or, in some instances, not available -- then surely we have entrenched that in spades in this executive director. If you can't even get an application past this stage; if the executive director deems for whatever reason that that application is deficient....
I hear the minister saying: "No, this is not supposed to be a gatekeeper; this is a shepherd concept. You say to the applicant that in order for this to move forward successfully, this is what they have to do, that is how they should proceed, this is the kind of thing they ought to look at." That is laudable in the cases where that will work. In the cases where it won't -- and as surely as we are all sitting or standing in this chamber today, there will be instances where it will not -- that executive director cannot and must not have the authority to withhold that proposal, and must allow it at some point, even in a deficient form, to go to a broader public process for review and denial. Otherwise, you are putting into the hands of one senior civil servant the authority to block something at stage A without any right of appeal.
Hon. J. Cashore: He clearly doesn't have that authority. It's only with regard to what's set out in section 8 -- and that's very limited.
G. Wilson: What's set out in section 8 -- which we have spent a long time discussing, in some detail -- says that you have to pay a prescribed fee, and that the application has to be accompanied by any prescribed information. When you say it's very specific and limited, it isn't limited at all. It is "any prescribed information," which is going to be determined at some future date by regulation, and then it lists from (a) to (k)
[ Page 8903 ]
what it is that has to be included in that. In section 10(2), it says that if the executive director considers that an application is deficient because it doesn't meet those requirements, that project stops there. It doesn't go any further, and there is no appeal. You can't say that you've got an intransigent and unacceptable civil servant who will not let you go forward; you can't bypass him and go to an elected official.
The minister says that this removes the politicization of it. I don't agree with that. It doesn't remove the politicization, because the minister appoints the executive director, and the executive director will be making decisions on the basis of the kind of direction that this whole process is looking toward. When we look at the project review committee, we're going to see even more how this project has been politicized, because there isn't even any public input into it.
It would be useful if the minister could give us some comfort that somewhere in this legislation, what is clear to the opposition will not be affecting these applications, because the power this person has been granted in this act is substantial. Whether it's intended or not, the powers of the executive director are substantial. If the minister can at least acknowledge that much, then as we start to proceed through this, we can link back to that powerful individual and recognize that that person holds the key to whether or not a project moves forward or not -- right here in section 10, not in any kind of public process because there isn't any worth noting, but right here in section 10. If the minister can at least acknowledge that, maybe we could move forward.
Hon. J. Cashore: The reason for this section is to protect both the proponent and the taxpayer by ensuring that there is not a costly step into the next stage of the process if the application has not been properly completed. That's all this section seeks to do, and to suggest that there is some kind of a message in this that isn't there is simply out of place. Of course this is a powerful individual. We do have to put people into positions in public service where there is power. I would suggest that this is one element of that individual's power, which is important; but I would think that the qualifications would have far less to do with giving someone power than with having someone that is good at working with people and helping to enable the process to work. As I said before, there's no legislation where you can have absolute guarantees. A lot of it depends upon the people you have in place, and how they do their jobs. There are senior civil servants now who have tremendous authority in government. I would say, by and large, that in the ministry I represent, they handle that very well. That's a simple fact.
C. Serwa: On section 10, I would presume that the executive director, within that 40-day period, can find that the information is deficient in some respect. Is that correct? Is that the 45 days that the minister talked about earlier?
Hon. J. Cashore: No, we haven't got to that section yet. That is the period for the review of the application after it's accepted. That will be in another section.
C. Serwa: What period of time does the executive director have to make a determination that the application is deficient in some aspect relating to the requirements of section 8?
Hon. J. Cashore: As I said a few minutes ago, it's prescribed by regulation.
C. Serwa: At that point, does that trigger another time period, which the minister refers to as being prescribed in regulations? It's going to be very interesting to see what these regulations determine as a reasonable period. There is a whole series of periods of time, which are starting to add up substantially.
If the executive director goes back to the proponent and requests specific information that the executive director feels is lacking, does this trigger another time period? How many times can the executive director continue to go back to the proponent with requests for further information? The reason I ask this is that the minister knows full well, especially in the case of a major project, that there are a lot of presentations and a great deal of lobbying is carried on by individuals or groups -- societies and communities, perhaps, in this situation. I'm just wondering about the longevity of this type of process where more and more information can be requested.
Hon. J. Cashore: It is within a time to be prescribed by regulation. It's in the interests of the executive director to work with the proponent in a way that shortens the time as much as possible. It's in everybody's interest to do it that way. There would be a prescribed period of time. Presumably, if the information came forward and more information was required, then that would have to be dealt with. You don't want it going into the project review committee phase and unnecessarily delaying that by having insufficient information. I'm sure the hon. member knows what it's like to sit on a committee and find that not all the information you require is there. This is simply seeking to ensure that the information is available.
C. Serwa: I'm trying to get a sense of the time, because I see a splendid opportunity for procrastination. There can always be more information required. It seems apparent that there should be some definition of what will transpire through the regulations. The longevity of a civil servant really depends not on how much they do, but sometimes on how little they do. Those people eventually rise to the top. That's a reality that prevails.
There's laughter, but fundamentally, it's only when you make decisions.... That's why it's so convenient to be in opposition. The government makes decisions, and they slowly accrue a litany of complaints and wrongs, and then they fall because of that accumulation.
[ Page 8904 ]
Nevertheless, the reality persists in bureaucrats and civil servants. I haven't seen any of the programs -- I started to read the book, and then I didn't find time -- but "Yes, Minister" is an indication of what can happen. I think that in legislation such as this, we should start to establish some finite guidelines. Not everything should be open to regulation. The latitude in this legislation is so great that you can drive a truck through this stuff and not touch any of it. This legislation and this particular section is far too expansive. Again, when we're talking about critical time lines on projects without any idea of what those time lines will be, the minister cannot hide and say that it will all be prescribed by regulation.
Hon. J. Cashore: I am not hiding behind anything. What I'm doing is putting forward in legislation something that this hon. member did not see fit to do in his major project review process, which provides not in regulation but just in a vague guideline for the very same consideration, and which in a sense -- when it lacks the power of law within either regulation or legislation -- is much more vague and subject to abuse. The hon. member is standing here speaking in a very concerned way about what this might do. But he sounds like a proponent for leaving things as they are under the major project review process, which doesn't provide the kind of protections and the move towards prescription and regulation that this requires. That's not even present in the present process, which is this hon. member's process.
It's a little interesting to hear him standing there and criticizing our attempt to put in something that is going to result in specific time lines being made available and in the public -- meaning business and other interests -- having the protection of legislation. Clearly that wasn't there before, except in the two processes this hon. member's party had put in place. In those instances it is the same type of process; it's to be prescribed by regulation. Nothing is different here, hon. member, than when your party was in government and you were the minister. There's nothing any different than what was in place then, only this is a move toward more protection for the public by having it specified in legislation and regulation.
C. Serwa: As we debate section 10, I've no particular interest in getting into an argument that the minister seems to wish to get into, a personal type of attack. The reality is that I come from -- and I think in our political philosophy we come from -- a background where we make things happen and do things. There's a substantial difference on that side of the House, where very few of the individuals have ever done anything other than work in the public service or union sector. There's a great deal of difference because time is your friend; you get your paycheque every week or two. In the real world real people don't have that happen. And jobs aren't created that way. There has to be a finite time. It's not good enough to be abstract. The legislation should be more selective, defined more closely, and require some imposition on those who will draft regulations to be responsible. I see no responsibility in this.
[8:00]
[M. Farnworth in the chair.]
G. Wilson: Under section 10, if the minister could give me some assurance that in this process of potential delay.... Let me be more generous in my use of words. If the applicant is unsuccessful in their first application because of some deficiency that the executive director deems necessary cause, and a competing application is filed later than the original, is there protection so that a person who may not have met those requirements but now has his material and applications available for public review -- which we've just identified will be there in section 9 -- cannot be scooped, essentially? Can somebody look at the review material of a proposal, recognize that a delay is in place and additional information is being requested, bypass the original materials by using the information his or her competitor has already filed and simply scoop an application? Is there somewhere in here that says, if there is before an executive director an application on a project that fails to meet the prescribed requirements or is deficient in some way, that the executive director cannot and must not hear an application by a competing interest on the same kind of thing until such time as that person has had a chance to remedy it?
Hon. J. Cashore: Prior to being accepted, the project is not on the project registry. If the project has not been accepted, that information would not be available, because it would not yet be on the registry. Once it is on the registry, if that remains a concern, as I answered previously, it could be subject to the confidentiality provisions of the Freedom of Information Act.
G. Wilson: As I understand it, we have a situation where.... Maybe we can canvass this more in sections 11 and 12. I am arguing this at this point because it is not unlike a situation that I had to deal with some years back. Two competing interests tried to get approval on a project, and the one that got the approval first was obviously going to succeed. I am very concerned that we don't have a situation set up, given the powers of this executive director, where you can have apply for a project that is found to be deficient, only to find that somebody who makes a later application gets the approval to go ahead because they have the advantage of knowing the deficiencies of the first application. That's my concern. Whether they get it through the Freedom of Information Act or whatever, the point is that once an application is before this executive director and is in process, presumably there has to be some restriction on somebody scooping it. Without that, you may find that an individual whose application is frustrated can then be scooped by somebody who can take advantage of that knowledge.
Hon. J. Cashore: I answered the question. The answer is that prior to being accepted, the application is
[ Page 8905 ]
not filed on the registry. While it's not on the registry, it can't be scooped. Once it gets onto the registry, which is the point where it is accepted, there is a provision to protect confidential information under the Freedom of Information Act.
G. Wilson: Is the minister confident that the delay because of deficiency by the executive director will not allow for a competing interest to advance their position over somebody who is in the door first? There are many instances where a time-sensitive application -- especially if it's a proposition on Crown land, or there is limited financing, or there are bylaw renewals to be done, or whatever it might be -- will make the difference between somebody's project being successful or unsuccessful. We have an executive director that can literally block an application from proceeding past step one if they deem it to be deficient, so it's important that we make sure somebody can't take advantage of that.
Hon. J. Cashore: That is true, and that is important. Given the function we are dealing with in section 10, I am confident that that would not happen at the process leading up to the acceptance of the application.
G. Wilson: With that having been said, I'd like to let the minister know why we in the Liberal opposition are so opposed to this particular section and are going to state our opposition so forcefully. We believe that this section has created an appointed civil servant with enormous powers and the ability to stop a process from proceeding, even at this initial stage, because of deficiencies in an application which are not spelled out because they are due to be set out in regulations that will follow. We also recognize that there is no appeal; the minister himself has said there is no appeal from this executive director who has those kinds of powers. For the purpose of the regulations in this particular act, we recognize that the minister has chosen to put in place the definition of reviewable project that this person will have rights and authority over. As such, we have created an enormously powerful civil servant. Whether it's intended or not, whether it will come about that way or not, we should never write in legislation the opportunity for benevolence to be our only saviour from the power granted to an individual. In this case, we are hoping that we've got a benevolent and worthwhile executive director. Failing that, we could have a gatekeeper to major economic development in British Columbia being one appointed civil servant. We believe that to be entirely the wrong way to go, especially as there is no process for appeal.
The Chair: Before I call the vote, I would like to remind members that the Chair has sometimes had difficulty in hearing the way in which members intend to vote. In future, when the Chair calls for the question, I would like members to respond with a loud and vocal yea or nay. It would make my job a little easier.
Section 10 approved on the following division:
| YEAS -- 30 | ||
|
Petter |
Perry |
Marzari |
|
Priddy |
Edwards |
Cashore |
|
Jackson |
Beattie |
Schreck |
|
Lortie |
Hammell |
Giesbrecht |
|
Miller |
Cull |
Zirnhelt |
|
Barnes |
MacPhail |
Lali |
|
B. Jones |
Copping |
Lovick |
|
Ramsey |
Pullinger |
Evans |
|
Dosanjh |
O'Neill |
Hartley |
|
Krog |
Randall |
Brewin |
| NAYS -- 14 | ||
|
Chisholm |
Reid |
Dalton |
|
Wilson |
Hanson |
Serwa |
|
Neufeld |
Symons |
Hurd |
|
Warnke |
Anderson |
Jarvis |
|
K. Jones |
Tyabji | |
On section 11.
Hon. J. Cashore: Hon. Chair, I move the amendment standing in my name on the order paper.
[SECTION 11, by deleting the proposed section 11 and substituting the following:
Accommodating amendments to application
11. (1) As an alternative to submitting a new application under section 8, an applicant who intends to materially change the project or the manner of implementing it may submit a written request to the executive director to amend the original application as necessary to accommodate the intended changes.
(2) The request for amendments must set out the particulars of the intended amendments to the application and must be submitted before the issue or refusal of a project approval certificate under section 23, 39 or 43.
(3) The executive director must
(a) give notice to the public inviting written comments from the public describing any concerns about the intended amendments,
(b) file a copy of the notice and of the request for the amendments at the project registry, and
(c) specify a period of at least 15 but no more than 30 days during which written comments in response to an invitation under this section must be received at the office of the executive director in order to be taken into account in a decision under section 12.]
F. Gingell: On a point of order, hon. Chair, I was in my hotel room when the bells rang. I looked at my watch; it was exactly 9 minutes and 30 seconds past the hour. I got up here with 25 seconds to spare, and the doors had been locked. The rule is five minutes, and you didn't give us five minutes. You gave at least 25 seconds short, but somewhat more than 25 seconds short, because you were in the process of the count.
[8:15]
[ Page 8906 ]
The Chair: Hon. member, the time is by the Chair's watch. It was five minutes, and rulings of the Chair are final.
On the amendment.
G. Wilson: Hon. Chair, it just goes to show what these late night sittings prove. First of all, your trouble with hearing explains why you always seem to rule on the side of the government, notwithstanding the fact that I'm sure the opposition wins most of the votes. Now we need a new timepiece so that we can have this done correctly.
On the amendment, I am curious to know who determines the material change. It says: "As an alternative to submitting a new application under section 8...." Who determines what a material change is? Does it mean that if a material change is implemented, the submission of this new application under section 8 would require that you file and pay another fee?
Hon. J. Cashore: That determination would be made in consultation with the executive director. With regard to the question of paying another fee, the answer is no.
G. Wilson: Once again, the executive director is going to determine whether or not a material change would require the submission of a new application. It also suggests that the manner of implementation may be submitted by written request to the executive director, and therefore an amendment of the original application would accommodate these changes. It sounds to me that what this amendment is doing.... We're clearly debating the change from section 11 unamended to section 11 amended. What the government originally proposed was that a project is accepted by the executive director, a project approval certificate is not granted, and then pursuant to sections 23, 39 and 43, which are applicable, somehow the project is redesigned or changed or it's determined that it can't go ahead. That has to be accepted as a material change. If that is so, to what extent is it intended that such material change be allowed within the time period set out in the regulation? The reason I ask this is that it will be interesting to see whether or not an applicant can file a process that would look benign, might be seen to be acceptable, may seem to be something other than what it is, and then as we get closer to the time of approval, may have something quite different in place. I'm curious to know, given that there's a prescribed time period within which the executive director has to act, during what time period this material change may take place without the requirement of a new application and a new fee.
Hon. J. Cashore: It could be any time up until the certificate is issued. That is subject to section 12, which outlines the procedure in the event that it is so far along in the process that further requirements would be in order.
I should have pointed out, in answer to the hon. member's first question, that the project review committee would also be involved in the determination that concluded it would be appropriate to proceed with an amendment to the application. I just want to emphasize that this section is in the interest of the proponent. It enables the proponent to have a requested change facilitated. It recognizes that it's often something a proponent wishes to do as the process develops. The change in the form of the section had a lot to do with feedback from the West Coast Environmental Law Association. It felt that, where such a change was being contemplated, it was very important that there be provision for the public to have an opportunity to comment.
G. Wilson: I wonder if it is possible for this to happen if there's a movement for early approval under section 19. Would you still have the opportunity to have an amendment? There's a reference in section 23 back to the minister for direct and early approval. I'm just wondering if the minister can approve that.
Hon. J. Cashore: The answer is yes, if it's prior to the certificate of approval having been issued.
G. Wilson: Would that require the invitation for public comment? Given that you're that far down the process, would you be able to bypass public comment at that point?
Hon. J. Cashore: The answer is no.
G. Wilson: I'm not quite sure: no to what? Is it that you couldn't bypass the public comment? Is that what the minister is saying?
Hon. J. Cashore: I said no to the question as phrased by the hon. member. No, you could not bypass public comment.
C. Serwa: It's not clear in my mind what the minister is referring to in this section when he talks about "material change." Is it the size of the project, the scope of the project, the capacity of production or the process? What is really meant? Are we looking at a percentage of change as a material change? Again, it's using a phrase for which the definition can be exceedingly variable. What is a material change?
Hon. J. Cashore: For example, a mine goes from open pit to underground. Another example would be, again, in a mine. It has defined the site location. Then, as the developmental work is going on, they find that they need to somewhat change the site location. Those kinds of changes are anticipated in this section.
C. Serwa: That's clearly understandable. There's a dramatic difference between the types of activities. But what about a mill capacity? I have no idea what a large processing plant would produce in tonnage, but let's say, for the sake of argument, that it's processing 1,000 tonnes of material a day, and they move to an increased capacity of 1,100 tonnes per day. Is that a material change? Not only who makes them, but what sorts of
[ Page 8907 ]
guidelines would be established with respect to regulations? The changes the minister referred to are obvious and certainly plausible and acceptable. But the concern I have is with the other types of changes.
Hon. J. Cashore: Again, that determination would be made in consultation with the executive director, the project committee and the proponent. I think it stands to reason that in the example the hon. member referred to, it seems less likely. If it was, however, a project that doubled capacity, then it would be more likely that it would require that process.
C. Serwa: Again, on section 11(2), I'm left with a question in my mind. If the material change is made after the project approval certificate is issued, what transpires at that time? The way the legislation is written here, it appears that if a change is requested once a project approval certificate is issued, there is no possibility.... There may be new technology or a new opportunity. Should there not be the opportunity for an amendment, or do we have to initiate the process all over again? You have the requirements following public consultation, etc., afterwards, but surely there should be the capacity....
Hon. J. Cashore: There is that capacity, but not strictly under the conditions outlined in this section. In a sense, it would be a different instrument. It is outlined in section 69(1), so there is a process in this act for dealing with a change after the project certificate has been issued. What we are dealing with in this section is a change prior to the issuance of the project certificate -- the hon. member is absolutely right. However, it is not dealt with in this section; it is dealt with in section 69.
J. Tyabji: With regard to the amendment, in section 3(c) we see that is says, with regard to the written comments: "...specify a period of at least 15 but no more than 30 days...." Is that 15 days from the time of the public meeting or the public invitation? What is that in reference to -- 15 days from what?
Hon. J. Cashore: From the time the application is filed.
J. Tyabji: With regard to specifying the period for the written comments, is there going to be any relationship between the 15-to-30-day period and the public invitation for written comments? How will those relate to each other in terms of all the procedures here?
Hon. J. Cashore: The notice to the public will specify the amount of time they have in which to file their comments.
G. Wilson: The notice of change will presumably be advertised in a manner consistent with the original application.... What is that...?
Hon. J. Cashore: That is correct.
Amendment approved.
[8:30]
Section 11 as amended approved on the following division:
| YEAS -- 32 | ||
|
Petter |
Perry |
Marzari |
|
Boone |
Priddy |
Edwards |
|
Cashore |
Jackson |
Beattie |
|
Schreck |
Lortie |
Hammell |
|
Lali |
Giesbrecht |
Conroy |
|
Miller |
Cull |
Zirnhelt |
|
Barnes |
MacPhail |
B. Jones |
|
Copping |
Lovick |
Ramsey |
|
Pullinger |
Evans |
Dosanjh |
|
O'Neill |
Hartley |
Krog |
|
Randall |
Brewin | |
| NAYS -- 15 | ||
|
Chisholm |
Reid |
Gingell |
|
Dalton |
Wilson |
Hanson |
|
Serwa |
Neufeld |
Symons |
|
Hurd |
Warnke |
Anderson |
|
Jarvis |
K. Jones |
Tyabji |
On section 12.
G. Wilson: We have now managed to work this applicant through the executive director's approval, to a potential review. We have looked at what may happen if there is a substantial amendment or material change to the application. Under section 12 we note that this is one of the sections in which the executive director must -- in this instance, there is a "must" implied -- allow the amendment of the application to the extent necessary to accommodate the request referred to in section 11. Then it suggests that "the review of the project be allowed to continue, subject to any variations to the review process that the executive director, in consultation with the appropriate project committee established under section 17, considers to be necessary...." This causes me some concern, because if a process is underway, the executive director is constrained from not allowing this amendment to proceed. We recognize that in allowing this amendment to proceed, we've got a situation where the original application has changed and the substantive amendment to the project has been put forward; and we also recognize that the executive director and the project committee may vary the process to allow it to proceed, as provided for in this section.
I wonder if the minister could clarify several things. First of all, what is meant by "subject to any variations"? Exactly what does the minister mean by this? What does it mean to the applicant? Does the applicant have some confidence that the proposal is going to continue as it was? Secondly, if there is a substantive amendment, does that change the time in which the committee has to act in order to do a further review or make further revisions, given that there is a provision for 15 to 30 days for the public to have input?
[ Page 8908 ]
Does that change the time clock and its ticking along for the approval process? Thirdly, what if the original committee is unable to come together and, for whatever reason, is no longer open to review a project? If there is a substantive amendment when the project approval is underway, can only that original committee hear it? Or is there freedom for the minister to strike an alternative committee?
Hon. J. Cashore: With regard to the first question, there could be a variation in extending the time required. I believe the second question was: what is the time the committee has to act? That would be prescribed by regulation. On the third question, with regard to the hypothetical instance in which members of the committee were no longer available, possibly through unforeseen circumstances, we would expect that the committee would still be together and available in the vast majority of cases. But there would be the possibility of contacting the agency that had appointed a committee member and asking them to appoint a replacement.
G. Wilson: Knowing that, if we could move to section 12(b), which allows the executive director to refuse the amendment, we come right back again to the powers of this new creation. Section 12(1) says: "After consideration of the matters set out in subsection (2) the executive director by order must...." If you look at subsection (2), it says: "For the purpose of an order under subsection (1)(a) the executive director must be satisfied that (a) the notice to amend the application adequately describes the intended changes...." Presumably if there is a contentious issue in a particular project -- and I'm thinking of the public interest here -- one could argue that the executive director might look very carefully at a process. A tailings pond at a minesite may be contentious. The executive director may look at it and say that because this minesite is in an area where there is substantial geological or seismic activity, the regulations require that this tailings pond be modified in a manner that adequately protects.... And the requirement for modification of the design comes in. There may be a disagreement between the executive director and the applicant as to whether or not that new design will adequately describe the intended change. It may not adequately describe it in the mind of the executive director, but in the mind of the applicant be clearly sufficient to proceed. That's just one hypothetical example, and we could think of many. But I think the minister understands where I'm coming from. If the power of the executive director as spelled out in section 12(1)(b) is such that it would allow the executive director to refuse the amendment, and it's clear that a refusal of such an amendment would refuse the project, is there an opportunity for the applicant to appeal at this stage?
Hon. J. Cashore: Any appeal would be subject to the general provisions of judicial review, but that's not part of this act.
With regard to another part of the hon. member's comments, the executive director would have the benefit of the project review committee at this point in time and would not be acting in isolation.
G. Wilson: That's an interesting point because that's not clear in what I'm reading. Maybe I'm reading it incorrectly, and if I am, I'd be happy for the minister to correct me. Subsection (1) seems to suggest that the executive director, in consultation with the appropriate project committee, would be there to approve the amendment or.... That's what it says. It says the director must do one or the other. Right? The conjunctive at the end of (1)(a) is "or." It says in (1)(a) that the executive director must by order allow the amendment of the application, subject to variations in the review process and consultation with the appropriate project committee, or must refuse to allow the amendment. It doesn't say anything about consulting with the project review committee to allow the amendment to proceed or not proceed or whatever. It's not clear that the project review committee is going to have that power. In fact, the language would suggest that they don't, and that the executive director does it in isolation.
Hon. J. Cashore: Hon. Chair, I think the hon. member is right, and we need an amendment. I'd like to suggest that we stand down part of this section while we work with the Clerk to get the proper wording to accommodate the point the hon. member has just made.
On section 13.
Hon. J. Cashore: I thank the hon. member for giving me the floor. With regard to section 13, I move the amendment standing in my name on the order paper.
[SECTION 13,
(a) by adding "and" at the end of the proposed paragraph (c),
(b) by deleting the proposed paragraph (d), and
(c) in the proposed paragraph (e)(i) by deleting "the edited copy" and substituting "a copy".]
On the amendment.
[8:45]
G. Wilson: I actually have only one fairly quick question on this, depending on the minister's answer. I'm not clear -- and I confess that in reading through all of this I haven't made notes -- as to where the public is notified. I know that within the Ministry of Environment, it is the policy of government that notification has to happen usually in popular publications: newspapers, community newspapers and those kinds of things. It may have been an oversight in my reading of this bill as to whether or not that's in here. But I notice that it does say they give notice to the public, inviting written comments. I'm just curious as to whether that's simply in the Gazette. Or is that notice going to be required in community newspapers or some publication more frequently read than The British Columbia Gazette?
[ Page 8909 ]
Hon. J. Cashore: The primary source would be the project registry, but we would also advertise through community newspapers.
G. Wilson: I'd be satisfied if that was stated somewhere in the regulation. I don't know if I can make that as a suggestion. But I know the difficulty communities have, especially those communities outside what I would call the Nanaimo-Victoria-Vancouver urban triangle. If we don't get notice in the community newspapers in a reasonably prominent display, projects often are well underway before the community knows. If there's only a 15-to-30-day time line.... Notwithstanding the fact that the Sun and Province try very hard to get into communities, they often aren't read as thoroughly as the community papers. I would suggest that, and hopefully, that would be seen as a friendly suggestion.
The other comment is that I guess the amendment removing (d) is for the same reasons as the previous one, where the Freedom of Information and Protection of Privacy Act is removed because it is generally considered that all materials within the registry are going to be public. Therefore, if it has specified some areas and not others, by implication it would simply mean that some were public and some private. Is that the intention of that amendment?
Hon. J. Cashore: That's correct.
Amendment approved.
Section 13 as amended approved.
On section 14.
G. Wilson: On section 14, "Comments invited within government and from other jurisdictions," I have two questions here I'd like the minister's comment on. The phrase, "To the extent that the executive director considers practical and appropriate," gives me a bit of concern, because once again the power is being transferred to this individual for consideration of "practical and appropriate." I would have thought that there would have been some mandatory referral process, but clearly that isn't there.
The executive director "must circulate an application for a project approval certificate" to the series of authorities spelled out in (a) through (e). My first question is: if we're going to have this open and more public review process, why would we not simply remove the existing policies for application review, under the referral process that we have now.... Why would we not move that same process into this system, which would require by legislation that that process take place, rather than leave it up to the discretion of the executive director as to whether or not it's "practical and appropriate"?
Hon. J. Cashore: This is actually broader than the net that would normally be cast for a standard referral. It's worded this way to enable the executive director to ascertain those jurisdictions that should be contacted.
G. Wilson: It's broader in the sense that there are more agencies named in this legislation. It talks about "the government of Canada and its agencies," municipalities, regional districts, first nations and neighbouring jurisdictions, which is broader. But it also provides greater discretion as to whether or not they're actually contacted, because it leaves it up to the executive director to say whether he considers it practical and appropriate. It would seem to me that there's a huge loophole through which a project can slide by. That might cause us some grief later on, if there isn't at least a pro forma standard referral, so that the agencies receiving that referral can decide for themselves if they have an interest in involving themselves.
Hon. J. Cashore: That would emerge over time. This section is drafted this way to try to avoid putting the government in the position of being subject to judicial review. We are trying to word this in such a way that it enables the process to carry along, avoiding the kind of delay that we need to avoid to be able to move projects through appropriately. On the advice of legislative counsel, this is worded in a way that seeks to be somewhat open-ended in that regard.
G. Wilson: I can appreciate the concern if the wheels of bureaucracy turn slowly, and I would agree that the minister is correct when he says that the more agencies you refer to, the slower the process is likely to be. The problem we have here is instances where new industries are coming in. I hate to keep picking on the aquaculture industry, but it's one that really did come into force in 1975-76 without any regulation or any kind of legislation. Jurisdictions weren't clear because of ambiguity between federal jurisdiction and provincial jurisdiction, and there very clearly was an environmental impact. There's no question there was an environmental impact in that industry.
The problem was that there was no mandatory requirement at the time for any referral process that would give those people who deemed their interests affected -- whether it was the federal, provincial or local government, and especially local government, or most particularly, people in the communities -- an opportunity to have some review as to whether or not these projects were sited properly or adequately, and so on. It was a brand-new industry and, regrettably, we didn't know as much about its effect on coastal British Columbia waters as we might have liked, because we hadn't done the research. The research that was available was largely from Scotland and Norway, as the minister knows. If at that point we had had this kind of process in place, I would argue that an executive director looking at that industry coming in would likely have said that it was not practical or really appropriate because of the speed at which the applications were being made. You would have to go back to 1975-76, and I think this minister remembers it because he was bombarded by all kinds of letters. Clearly, the speed at which these were taking place makd it unlikely to be practical or appropriate that this procedure would have been followed, and yet without it, tremendous divisions occurred within communities. There was a lot
[ Page 8910 ]
of unrest. It was an industry that got off to a very bad start, and it might not have done so if government had recognized, right away, that there had to be some kind of referral and communication with local communities.
I would argue strongly that under section 14(2) -- "The executive director must include with an application...a notice inviting written comments describing any concerns...." -- the discretion provided to the executive director should be removed, that there should be provision for a stated time frame within which the various jurisdictions have an opportunity to respond. If they fail to respond, then they cannot deny that they have had the opportunity. I could see an instance here, for example, where a regional district or local municipal government would not be referred to because it was deemed by the executive director not to be practical or appropriate, but where their interests would very definitely be affected. They may in fact come back against the government hard because they were not given at least the opportunity to respond.
Hon. J. Cashore: The very purpose of this section is to ensure that their interests are recognized and included.
G. Wilson: Let me try one more shot at this. If that's the purpose of this, and I accept that it is, then surely providing the discretion to the executive director is not in the interests of the purpose -- in fact, not even consistent with the purpose -- of this section. If the purpose is to give them an opportunity, then the discretion as to whether or not they respond should surely lie with the local government, not with the executive director. They should at least receive formal notification with invitation to respond as per section 14(2). When they have received that, let them decide whether their interest is affected. If it is affected, let them decide whether or not they want to make formal application. Leaving it up to the later stage, where they are invited to, is a top-down government policy that I am not sure will be well received, quite frankly.
Hon. J. Cashore: This is worded to recognize the fact that it is possible that one of the very many agencies could be missed -- not intentionally, but that is a possibility. This is worded in such a way that, to the very best of our ability and available knowledge, these people would be circulated. This is an administrative role of the executive director, and it's simply a task that the individual is required to perform. But I have recognized that there is a bit of leeway in the way this is worded to recognize that we cannot practically put a compulsion in there that means that virtually every one of literally hundreds of agencies that could exist within an area have to be circulated. It's possible to miss one or two, even with the very best intentions.
C. Serwa: I'll continue on that point, because it's a very important one. Again, if we use such words as "reasonable effort," for example, that would cover this rather than.... This section says something substantially different than what the minister intends it to say. Section 14(1) says: "To the extent that the executive director considers practical and appropriate...." That is substantially different with respect to casting that broader net.
I agree with the member for Powell River-Sunshine Coast that if we have environmental concerns, the decisions should not be made by the executive director. Rather, every reasonable effort should be made to contact all government agencies at various levels that may be impacted by that. It seems abundantly clear that the minister should sincerely consider standing this section down and coming up with an amendment that would perhaps not make it absolutely mandatory, but run closer; that with reasonable effort, all of the agencies -- because we are talking about not only the government of British Columbia but also the government of Canada and its agencies -- must have a mechanism that would identify all of the responsibility. It doesn't have to fall on the shoulders of the executive director. It is reasonable that the other levels of government that would have an interest in the ultimate decision should be given the opportunity, and that opportunity shouldn't be based on the discretion of the executive director. It should be given automatically with a sense of responsibility, and if the interests of other levels of government or agencies of this government are deemed to be affected, then it's their responsibility to respond again to the executive director.
I have listened to the debate on both sides of this issue, but I am confident that if objectivity, fairness and balance are the very essence of this piece of legislation, the minister should strongly consider standing this section down, looking at it and perhaps coming up with an amendment that requires a reasonable effort to inform the other agencies, covers the legal responsibility, and contains the directive in the legislation that it is incumbent on the executive director to strive to inform all other agencies.
Hon. J. Cashore: This is only the initial cast to try to get information into the right person's hands. The legislation does have some very definitive language where it says that the executive director must circulate an application. It specifically lists five entities there, but it is worded in a way that recognizes that it is possible that something could be missed. Again, in the interests of being able to move these projects through reasonably quickly, we don't put this in a way that could result in an interminable delay from some judicial review on what would be a very minor point. So this is an appropriate wording for this part of the legislation, which is not at a decision-making point with regard to a project certificate approval or anything like that. It is simply an initial stage of ensuring that that information gets out there. The various components that are represented on the project committee would also be a check and balance in terms of seeking to ensure that all of the right parties are informed.
[9:00]
C. Serwa: The executive director is obviously going to be a very competent professional. We are looking at a number of major agencies -- not all that many. I agree
[ Page 8911 ]
with the minister: you can't possibly contact them all. But fundamentally, it is not difficult to contact the major agencies. The minister is well aware -- and the executive director will be aware -- of other British Columbia government agencies that will be involved, and it is a simple matter to advise them. It is the same with the federal government. It is not all that difficult to determine traditional territory, and if there is an overlapping claim, then by all means both responsible aboriginal governments that are potentially involved should be notified.
Listening to the member for Powell River-Sunshine Coast, I don't see the great concern with respect to a judicial review of the mandatory aspect, because it is not my wish that this be made mandatory. But it seems to me that there is too much latitude in the wording here. If we are concerned about the Environmental Assessment Act, every reasonable effort should be made, but I don't think that implies a legal responsibility to contact everyone; that on a technicality something will transpire.... Certainly public advertisement in the Gazette will attend to the legal requirements, but the specific effort by the executive director should be made. I guess we may have a difference of opinion. I would like the minister to review that, because I hate to see loopholes, and it is a fairly significant loophole when an agency that may be very involved in this is not made aware. That is my fundamental concern.
Hon. J. Cashore: On that suggestion, I just want to say that the way in which the legislation is drafted really does cover that concern.
G. Wilson: Let me just try one more shot at this, because I do think this is a critically important point; I think it is a pivotal point to some of what our concerns are.
The reason that I raise this issue is certainly not to be obstructionist or to try in any way to delay this evening any more than it is already going to be delayed. I raise this issue because if the minister recognizes the concerns we have and the reason why we took such strong objection to section 10, with respect to the executive director's powers.... Again, we see the discretion provided to the executive director to make referral to the various other agencies where elected officials.... Remember, we're talking about trying to keep the hands of decision-making in the democratically elected representatives of the people, not in the appointed members of government. This is philosophically what we are trying to work at here, and maybe that's where we have a division we'll never cross -- I don't know. The point is that there is an appointed civil servant with the power and discretion to decide whether an application goes to the various agencies for review. That same civil servant, appointed by government, has the discretion to decide whether those agencies should get written referral.
The problem I have with not changing that, where there is at least an opportunity for input, is that even a little later on -- not too much later on, presumably -- when we get to where we set up this project committee, the executive director may -- not must, not will, not shall -- invite the various agencies to sit on that committee. Nothing in here provides any guarantee that local government -- regional districts, municipalities or local authorities have a full and open review process available to them for comment, unless they respond in a manner similar to the way the public will, and that's in response to public advertisement.
I have some concerns with that, because I think that within local government and regional districts there are a whole series of planning professionals and people who are involved. Sometimes they can be as obstructionist as anyone else, but usually they are professional people who have some insight into what is suitable for a particular community. Yet there is nothing in here that requires that they be asked for their opinion. The executive director can simply say: "I don't think it's practical or appropriate that I consult with these people in this particular instance." In the initial application -- as the Leader of the Third Party raised earlier on in debate and discussion -- if they decide that they don't have to go through this committee stage, then the executive director can arbitrarily determine that a project can proceed without any referral to local government at all.
There is no requirement anywhere in this act for local government and the people elected at the municipal level to have the right to respond in a formal referral process. In my judgment, it's not even as strong as what exists in the legislation today, because there is a requirement that local land use bylaws and local jurisdictional bylaws have to be consulted. There has to be a full and proper referral process prior to those applications taking place.
Hon. J. Cashore: It is in the absolute interest of the executive director to facilitate this process. To take the step of using some sort of draconian power to exclude one of these groups would be ridiculous, because these groups are represented on the project committee. As such, there is a check and balance so that if we did have that type of individual, he wouldn't last very long under any government. If there was that kind of individual, the project committee would be there to say: "Wait a minute! You failed to include one of the prescribed agencies that should have been included." I would also remind you that the application is made public and is accessible through the project registry. Failure on the part of the executive director to contact the appropriate groups would work against the executive director and make his or her task much more difficult.
The whole purpose of this point is to facilitate the process, and I cannot see any reason why the executive director would have any motivation other than to facilitate the process.
G. Wilson: Let me offer an explanation to the minister in the interest of trying to put my point of view forward. I raised that because the minister says that these jurisdictions will be on this project review committee. That's not necessarily so. The legislation doesn't require that they be on the project committee.
[ Page 8912 ]
When we get to section 17, we'll see that the executive director "may invite." Once again, the discretion lies with the executive director. It doesn't say that they shall be there; it says that they may be there. It's up to the discretion of the executive director.
The minister must know that an elected municipal council and a regional district may have quite different opinions over the prospect of a project proceeding or not proceeding. Local governments tend to govern their turf rather jealously. Anybody who has been involved with local government will tell you that what I'm about to say is so: local people who live in communities want to have a say in what happens in their community. They want to have some public input, and they want the confidence of knowing that they have some accounting from those who make the decision. The people who are most accountable, albeit not as accountable as they should be, are publicly elected officials. Appointed civil servants are not accountable to the public, because the public can't do anything about them if they are not doing a good job.
What we are saying is that if you are going to have a referral process, surely it's in the interests not only of the executive director.... The minister keeps saying it's in his interest to see this proceed smoothly; that's true. If the executive director deems that it will proceed more smoothly without a formal referral process to one or more of these agencies, there is nothing that obliges him to make that referral. If you are going to put in legislation requiring these procedures and considerations, then say that the executive director must circulate an application for a project approval certificate and leave it to the discretion of the agencies referred to as to whether or not they apply. Give them a time line. They have to respond within 30 days. If they don't respond, fair enough; they had an opportunity to.
Look at the sinking of the Chaudi�re in Sechelt Inlet. The Sechelt Indian government district was not consulted, because there was no obligation for anybody to consult them. It wasn't deemed to be in their interest, because, I assume, nobody in a decision-making position thought that they would object to it or took the Sechelt Indian claim over that inlet seriously. They don't have to be consulted; it says they do if the executive director considers it practical or appropriate. If the executive director doesn't, through oversight or whatever reason, you have another major problem. It would be so simple to amend that to say that he or she has to circulate it to those agencies. If those agencies don't respond within 30 days, fair enough; they have had their chance. I think that's fair. It gives the decision-making to the locally elected officials. It's a simple amendment, and I think it strengthens the clause.
Hon. J. Cashore: One of the reasons for the way it's worded is in subsection (1)(e). If no neighbouring jurisdiction was in the vicinity of the project that would potentially be impacted, where would you extend it to? The intent is very clear here, but it leaves the possibility that there may be some variation on that in some instances. Again, it would not be in the interests of the executive director not to circulate it appropriately, given the listing that is here.
G. Wilson: To accommodate the concern of the minister, I would say: "the executive director must circulate an application for project approval certificate to the following agencies," and list (a) through (d), and at the end of (d) say "or to any British Columbia neighbouring jurisdiction in the vicinity of the project, where one exists." That takes it into account and takes the discretion out of it. If there's one there, that's looked after. And it provides for all of the other major jurisdictions to be referred to.
R. Neufeld: I would like a little more clarification of what the minister deems the "vicinity" of the project, and of subsection (1)(d), which is to "first nations whose traditional territory includes or is near the site of the project." What would you determine as "near" and "vicinity"?
[9:15]
Hon. J. Cashore: I think those two questions provide a good case in point for this being worded in this way. With regard to both of those instances, it would be those first nations that would likely be impacted by the project.
R. Neufeld: I appreciate that. I wonder why we couldn't have something to the effect of "those that would be impacted" written in there in some way, so that people know. For instance, in the case of the Stronsay mine, I don't know what you would classify as near, but I think there are some native bands to the west of there that are actually across the divide, but not all that far. I don't think they would be affected, but you could almost say "near the site of the project." The executive director could determine that they're near because they're within 50 or 100 kilometres and could let them know, and that may have an effect on the project. But still, the project would not affect them. That's the difficulty I have here. If we're dealing with municipalities and regional districts that are directly affected, then I would be a little more comfortable if that was written into the act so that it was a mandatory thing that happened.
Hon. J. Cashore: Again, that is why it has to be worded this way. There has to be some discretion to be practical and appropriate in the way this section is applied. There are no two identical situations throughout the province, and there has to be an ability to apply some judgment and discretion that's practical and appropriate in view of the circumstances. There are checks and balances in this process. This is at a very early stage. The information does get onto the project registry. If some party had inadvertently been missed, there are means whereby they would be able to make that point known to the various parties on the project committee. The purpose here is to facilitate the process in the interests of enabling the proponent to move on at a reasonable pace.
[ Page 8913 ]
J. Tyabji: I'd like to follow up on the comments by the leader of the party with regard to this section and why there are some really critical areas that need amendment. As the minister is aware through the consultation process that has been going on, there have been submissions from environmental groups around the province with regard to section 16. Although the minister has entertained substantial amendments to other sections of the bill, in this section two things keep coming up that have been dealt with by the leader: first of all, the fact that it is an arbitrary decision on the part of the executive director to have the participation of the groups that are listed; and second, the fact that there is no mandated public representation at the table.
I'd like to share with the minister a couple of the proposals that were brought forward by some of the environmental groups, which he may or may not be aware of. I put them forward for constructive debate.
Hon. J. Cashore: On a point of order, I wonder if the hon. member would clarify the section that she's referring to right now.
J. Tyabji: Hon. Chair, I'm talking to the same principle, but the minister is correct in calling me to order on that.
With regard to this section, I believe we have a written amendment coming forward. I want to talk for a little while about the principle of the discretion of the executive director.
I see that the member of the third party wants to get into the debate. I'm going to yield the floor for a second to get a point of clarification.
C. Serwa: I'm still really concerned about section 14(1), where this arbitrary latitude exists. The reality is that we're seeing the Minister of Environment already captured by a non-existent executive director, the drafters or the civil servants. This is where I have my concern. The minister has been chosen for his interest, experience and capacity in the field. The minister should be able to make decisions with his own capability.
I'm confident that the minister has listened carefully to debate and has expressed his concerns. A number of times I've seen where he has consulted with the civil servants who are with him. It is very reasonable to expect a high standard of performance from the executive director. We don't have to cover the executive director for errors, omissions or anything else. A very competent career senior civil servant will be in that position. So it consistently amazes me that when we go through this legislation, we find all sorts of latitudes given to that individual. The expectation has to be for the highest standard of performance. In order to get that standard of performance, it is important that the executive director be advised of his responsibilities and what is expected of him in the legislative package. It is not asking too much to consult with other jurisdictions, other levels of government or other ministries within the province.
A simple straightforward amendment should be acceptable to provide us and the public with the necessary comfort that the strength of this executive director is somewhat tempered by the direction of the government and the Minister of Environment. It has always been my belief that the dog should wag the tail. What I'm seeing at the moment is an example of the tail wagging the dog. The Minister of Environment is putting this legislation forward and is ultimately responsible for the package. It appears to me that the Minister of Environment should see the validity of accepting these suggestions and come up with an amendment that indicates that a reasonable effort must be made rather than, as it is at the moment, what the executive director considers practical and appropriate. That is unreasonable in my mind, and I'd like the minister to respond to that.
Hon. J. Cashore: Looking at some of these sections, if we take the point the hon. member has just made and go back to the question that was asked by the member for Peace River North, I think this section makes a very good case for the need on the part of the executive director to have some ability to make an appropriate judgment. It's for the simple fact that you do not have complete specificity with regard to first nations whose traditional territory includes or is near the site of a project. That, by definition, requires some judgment. Now, hon. member, I will tell you that this could also apply to a judgment call with regard to neighbouring jurisdictions that may be impacted, or it could apply to an obscure agency of the government of Canada. You could circulate several agencies within the government of Canada, but possibly miss one -- I think we all know that there are a number of agencies.
I would have to say that the points the hon. members are making are points that I too have been concerned about. I understand there's an amendment forthcoming, and if it's the amendment around this particular point, I have discussed this with legislative counsel. They have pointed out to me that on the basis of this fairly minor aspect of the bill, a special interest group could glom onto some inadvertent omission on the part of the executive director acting in good faith, and that could result in an incredible delay that would be inappropriate and mischievous. The language in there is absolutely specific, whereas in some of these sections there's not even a specificity with regard to the type of application and it could result in the process being unnecessarily delayed.
So we have discussed this with legislative counsel. I recognize the point that is being made. I have to say that after having considered all aspects of this, I think we need a section like this providing for the amount of leeway that enables this to be done to the absolute best of our ability, granted that there are checks and balances in there in the project registry and the fact that the application becomes public and that those on the project committee have a direct interest in agencies being notified. This is written as well as it can be, given those considerations.
C. Serwa: I'm pleased to hear the response from the minister. I'm pleased that he has anguished over this particular section as, I think, we have on this particular
[ Page 8914 ]
side. In the end, I think we want to see the same type of opportunity and quality results. I'm certainly not able to argue with legislative counsel, except that there are a number of ways of presenting a section of legislation which is not mandatory. I know the minister had stated incorrectly that it is our intention to make this type of direction mandatory. It is not. It is certainly not our intention to strive to get the executive director or the process into a legal predicament or entanglement, because that serves no useful purpose either.
What I'm personally looking for is a stronger sense of direction, so that these agencies will in fact be notified rather than the situation as expressed in the current wording in section 14. There seems to be entirely too much latitude on the executive director, and I've tried to make the point effectively before. Certainly from our side, I'm confident that we would like to see a stronger sense of direction in that legislation. Again, I sincerely believe that legislative counsel have a variety of options at their disposal to ensure that the process is not faulted or held back in a court of law, because it is not going to be mandatory. But I think that it is necessary to impose a stronger sense of direction for the executive director in the wording of the legislation. I feel -- and again, I think it is a matter of public confidence in this piece of legislation -- that unless every reasonable effort is made to inform the other levels of government and other agencies, we will have failed in the Environmental Assessment Review Act, and the whole process will have failed. On the one hand, there may be a concern about legal liability and moving closer to mandatory, which is not quite what we want. On the other hand, the whole purpose of this fails if we fail, through laxness in the wording, to give that strong sense of direction, and if the other levels of government are not notified. Once they are notified, it is up to them -- not necessarily the executive director -- to contact whoever and whatever agencies are directly involved in that.
J. Tyabji: My thanks to the minister for calling me to order on the last section. I was getting a bit ahead of myself. At this time of night my eyes aren't focusing that well anyway. On section 14....
Interjection.
J. Tyabji: My thanks to the back bench.
On section 14 I raise the same point about the arbitrariness of the executive director's discretion regarding circulation of an application for a project approval certificate. A couple of questions come to mind. First -- and this has been canvassed to some extent with regard to neighbouring jurisdictions -- is the drafting of the specific subsection 14(1)(e): the circulation "to any of British Columbia's neighbouring jurisdictions in the vicinity of the project." What comes to mind there is the Georgia basin initiative. Is that the kind of jurisdictional reference that is being made in that section?
[9:30]
Hon. J. Cashore: No.
J. Tyabji: For clarification, then, when we are talking about neighbouring jurisdictions, would we not be talking, for example, about local governments that might be adjacent to the project but not on this side of the federal border?
Hon. J. Cashore: The way it was phrased there, the answer is yes. The earlier question was if it would include the Georgia basin initiative. That would be quite a separate process. The way this is worded is clear: "any of British Columbia's neighbouring jurisdictions in the vicinity of the project." It could, for example, be the Yukon, Alberta, Alaska, Washington State, Montana, Idaho or the N.W.T.
J. Tyabji: I mentioned the Georgia basin initiative, because in many parts of the province we are moving toward regional umbrella governments where there is a lot of transference of information across the border. In the interior we have this new group called PACE. The Georgia basin initiative just happens to be where intergovernmental relationships are one of the key focuses. The reason that I am asking under 14(1)(e).... Is that the kind of reference that we are making? Is there going to be some kind of a back-and-forth exchange on a project proposal?
Hon. J. Cashore: The Georgia basin initiative is not a jurisdiction; we would look upon Washington State as a jurisdiction. Washington State is an example of a neighbouring jurisdiction as defined here.
J. Tyabji: The reason I would like to nail this down is that I think that in the future, particularly with the Environmental Assessment Act, there will be a move toward local governments on both sides of the border working together. When I talk about the Georgia basin initiative, I understand that it isn't a government, but as this minister is no doubt aware, one of the main focuses there is intergovernmental exchanges. When we talk about comments invited by government from other jurisdictions -- if we could just focus on that for a second, in that we're talking about comments invited by the executive director from neighbouring jurisdictions -- to what extent will input from across the border be weighed in the overall review of the project? How is the role of something like the Georgia basin initiative, as a referencing zone for the local governments, going to be used by the executive director in determining who needs to be contacted and how to weigh the level of input from those governments?
Hon. J. Cashore: They would have representation in the same sense as any other agency would on the project committee.
R. Neufeld: Just a question again about (e), and what the member for Kelowna East was talking about. If we go further ahead to section 17(2)(e), we read that the executive director may invite any of British Columbia's neighbouring jurisdictions in the vicinity of the project to sit on the committee, and that the committee will make recommendations to the minister as to whether
[ Page 8915 ]
it's viable or not. In my particular constituency, I border the Yukon, Alberta and the Northwest Territories. If we invited someone from any one of those jurisdictions to sit on that committee, that could deter whatever happens in British Columbia. I can think of an instance in my constituency, right along the Alberta border in the east Helmet area, where it's a fairly extensive field, and you could have a sour gas field and a plant to take care of the sulphur. But if we were going to have someone from Alberta sit on that committee and apply Alberta's rules, or veto anything that happens in British Columbia, it could conceivably be on the other side of the border. The border is not a fence line. They drill all over, and we work back and forth. I'm just wondering how much stake we are going to put in the rules that those neighbouring jurisdictions have in what we do. It's fine to notify them, and that's what I'm getting at about the vicinity, and who's directly affected. But I have a little problem with them sitting directly, unless they are observers. If they're sitting on the sidelines and they want to be observers, and if you want to let them know, that's fine -- but I don't know whether I would really like them sitting on the committee making decisions for what's going to happen in British Columbia.
Hon. J. Cashore: A very insightful point. The fact is, though, that the commitee would not have veto power. It is an advisory committee. When that committee was delivering its advice to the government, the makeup of the committee would be taken into consideration. That would certainly be an important consideration. So it would be very important, in terms of the way in which the work of the project committee came forward, that it would come forward with it being very clearly stated that there was, in that hypothetical instance, that kind of representation.
The point that the member makes is therefore well taken: that in accepting the advice, it would behoove government to accept that advice which is primarily in the interests of British Columbia. It should also be stated, however, that the interests of British Columbia involve, to a great extent, maintaining appropriate relationships with our neighbours, and to that extent their input is very important.
R. Neufeld: I appreciate that. That's why I say we should be getting their input, and they should be informed of what's going on at their borders. I don't have any problem with that. I'm not trying to get away from that point. How will the rules from a neighbouring jurisdiction -- such as Alberta, the Northwest Territories or the Yukon -- affect what we're going to do with a project close to the border? By close to the border, I mean within kilometres. Do we take their rules into consideration? Let's say we're going to have emissions that exceed their rules. Would that automatically nullify the project or not?
Hon. J. Cashore: No, our rules and regulations would obtain in that circumstance, but we would be interested in their comments with regard to potential impacts. We would be cognizant of the need to relate appropriately to our neighbours; therefore, as the hon. member said, it's important that we receive that information from them.
J. Tyabji: I want to pursue the line of questioning and then move on to something else under this section. With regard to the neighbouring jurisdictions, I used one example, and the member for Peace River North was talking about where you have jurisdictions bordering on one jurisdiction. Where I think there is a concern -- and I'd like to hear some feedback from the minister -- is, for example, a water diversion project. Let's say that there's a regional emphasis on coordination of economic and environmental initiatives -- like PACE, which is in the interior now. In the event of there being jurisdictional input from below the border, where there's a real push for the North Thompson diversion.... We can even go east of PACE to the Kootenays where there's now some cross-border economic movement, if not toward integration at least toward interrelationships and cross-referencing of information and some market demand and supply going across the border. We see that happening along the B.C.-United States border and from the B.C.-Alberta border all the way west.
I have a concern where there's an interest south of the border in an environmental project like a river diversion or a hydro project. Or we could even say a waste management project where we could see that there would be some significant gains south of the border. Let's imagine for a minute that the executive director also has before him or her some other project, where there are people on the project review panel from whom he's been asking for input to the extent that it's considered practical and appropriate. Will there be any kind of opening for those jurisdictions to actually be in a position of greater influence at the table -- this was raised to some extent by the member for Peace River North -- because of the other projects that they're involved in?
That's why I'm bringing up the Georgia basin initiative. The fundamental premise in the Georgia basin initiative.... The minister doesn't seem to understand the importance of this question. I'm talking about jurisdictional fiduciary obligations being passed on; that's what I'm talking about. There are going to be compromises in terms of our legislative capacity cross-border, no matter what. That's what the Georgia basin issue is about. The minister doesn't even understand what I'm talking about. I'll move on to another question, and I think that's unfortunate. If you look at ten or 20 years down the road, the Georgia basin issue is going to lay the groundwork for this kind of input. And if we don't deal with it now, we're not going to be able to control the process.
The Chair: Order, please. I'd like to remind the hon. member that we are on section 14, and that she could confine her remarks to section 14.
J. Tyabji: Thank you, hon. Chair. I thought I was. I was talking about neighbouring jurisdictions. Under section 14(2) we've got: "The executive director must
[ Page 8916 ]
include with an application circulated under this section a notice inviting written comments...of the project and whether those potential effects warrant detailed review of the application." Who's going to be deciding what warrants the review? Is that going to be governed by regulation, or does the minister have an idea about what that refers to right now?
Hon. J. Cashore: This leads to the decision as to whether to refer the project to the minister and the minister responsible or to stage two in the environmental assessment process.
G. Wilson: I propose an amendment to clean this section up, at least from the point of view of the issues I raised. Therefore I move that section 14(1) read: "The executive director must circulate an application for a project approval certificate (a) internally within the government of British Columbia and its agencies, (b) to the government of Canada and its agencies, (c) to municipalities and regional districts located in the vicinity of the project, (d) to first nations whose traditional territory includes or is near the site of the project, and (e) to any of British Columbia's neighbouring jurisdictions in the vicinity of the project where one exists contiguous to the jurisdiction of this province."
[9:45]
I think that clarifies, from our point of view, that the executive director is going to circulate to these governments. Clearly it would be in the regulation that the time lines would provide for these jurisdictions to respond. Failure to respond would not in any way impede this process, nor would it allow for any loophole from any individual. Clearly one also can state within regulation -- you don't necessarily need to state within this bill -- that any notice to provincial or federal government or contiguous jurisdiction of this province would constitute circulation of application. I think that can be said fairly clearly, which doesn't open us up to any future litigation.
Having said that, I move that to be so. I don't think it in any way impedes this bill; in fact, if anything it strengthens this section.
Hon. J. Cashore: I won't reiterate the points I've already made in opposing this amendment, which I anticipated, except to say that we have sought the advice of legislative counsel with regard to this. I have outlined the concern. I have also pointed out that not to have the phrase that is in there at present would subject this section to the possibility of a special interest group taking what had been a minor error and turning that into a major delay for the proponent.
I point out, too, that concerns have been expressed to us from parts of the business community with regard to this wording. They are concerned that this legislation could end up with the kind of wording that would create such a Pharisaical legalistic nightmare that it would make it possible to virtually stop this process at several stages along the way. The point has been made clearly, by both of the opposition parties, that this bill should be cognizant of the need to enable business to achieve investment. If we keep putting processes in there that open it up to a frivolous action on the part of a special interest group, that's the very thing that can delay the process unnecessarily.
I recognize the points that have been made; I have some sympathy for them. But I must say, on the basis of having given this very careful thought, that we cannot support this amendment to this section.
The Chair: Before I recognize the next speaker, the Chair has considered the amendment and it's the Chair's opinion that it substantially changes the intent of 14(1). Therefore it is out of order.
G. Wilson: That's too bad, because I think it would have strengthened the bill. Then, on the ruling of the Chair, one has to argue that if it does substantively change the intent of the bill, clearly the intent of the bill now is to put discretionary power in the hands of an executive director who can override local government and locally elected officials. I think that spells out in spades our concerns under section 10. Once again it provides the executive director far too much authority and power. I've warned the minister that we will oppose, on the record, where the executive director has been given extensive and exclusive powers.
Having said that, I suppose there's nothing more to do but defeat section 14(1).
C. Serwa: This is probably just a short question. It was brought forward by my colleague the hon. member for Peace River North. The minister responded when we were identifying other municipalities, regional districts or perhaps provincial governments in section 14. It's my understanding that in the case of a project taking place in close proximity to other borders -- be it the Northwest Territories or perhaps Alberta -- where a project will affect either water or an air mass, the federal environmental assessment review process comes into play. So we have two processes: we have the federal process as well as this provincial process. Is there a priority? Obviously, in a multijurisdictional issue, the federal one has substantial priority. But is there conflict? Do they dovetail? What really transpires? What initiates the question are the clauses that are consequential to section 14.
Hon. J. Cashore: They dovetail, and that is dealt with in section 84.
Section 14 approved on the following division:
| YEAS -- 32 | ||
|
Petter |
Perry |
Marzari |
|
Boone |
Priddy |
Edwards |
|
Cashore |
Jackson |
Beattie |
|
Schreck |
Lortie |
Hammell |
|
Lali |
Giesbrecht |
Conroy |
|
Miller |
Sihota |
Cull |
|
Zirnhelt |
Barnes |
MacPhail |
|
Copping |
Lovick |
Ramsey |
|
Pullinger |
Evans |
Dosanjh |
|
O'Neill |
Hartley |
Krog |
|
Randall |
|
Brewin |
|
[ Page 8917 ] NAYS -- 17 | ||
|
Chisholm |
Reid |
Gingell |
|
Dalton |
Wilson |
Stephens |
|
Hanson |
Serwa |
Neufeld |
|
Symons |
Tanner |
Hurd |
|
Warnke |
Anderson |
Jarvis |
|
K. Jones |
|
Tyabji |
The Chair: The minister will go back to section 12, which was stood down.
On section 12.
Hon. J. Cashore: I'd like to propose a House amendment to section 12. This amendment is based on a concern raised by the member for Powell River-Sunshine Coast. I appreciate that point. It's with regard to approval of an amendment application. I'll just read the amendment. "Section 12(1) "After consideration of the matter set out in subsection (2) the executive director by order must, in consultation with the appropriate project committee established under section 17, (a) allow the amendment of the application to the extent necessary to accommodate the request referred to in section 11 and direct that the review of the project be allowed to continue, subject to any variations to the review process that the executive director considers to be necessary, or (b) refuse to allow the amendment."
In effect, we have taken the point requiring "in consultation with the appropriate project committee" and made that generic, moving it up to clause one. That makes it generic, and applicable to both (a) and (b). I hereby move this amendment.
Amendment approved.
Section 12 as amended approved.
On section 15.
Hon. J. Cashore: I move the amendment to section 15 standing in my name on the order paper.
[SECTION 15, by deleting the proposed paragraphs (a) to (c) and substituting the following:
(a) file a copy of the comments at the project registry, and
(b) advise the applicant for the project approval certificate that the comments have been received and give the applicant an opportunity to respond to the written comments.]
The amendment of this section will ensure that this section accurately describes the nature of the information which the executive director must file at the project registry. It makes it clear that the comments received from the public will generally be made available to the public at the project registry. It works in connection with section 61, which requires that any information filed at the project registry must be consistent with the provisions of the Freedom of Information and Protection of Privacy Act.
[10:00]
Amendment approved.
Section 15 as amended approved.
On section 16.
Hon. J. Cashore: I move the amendment to section 16, modifying a proposed section 16, standing in my name in the order paper.
[SECTION 16, by deleting the proposed section 16 and substituting the following:
Public information and consultation
16. (1) Before a decision may be made under section 23, an applicant, if and as directed to do so by the executive director, must carry out each or any combination of the following activities relating to the distribution of information about the project:
(a) advertise the application in the prescribed manner;
(b) conduct a program of public information and public consultation in the prescribed manner;
(c) provide to persons or organizations specified by the executive director a copy of the application, or notice of its availability for inspection at one or more locations specified by the executive director.
(2) In the absence of a direction under subsection (1) that the applicant carry out an activity listed in that subsection, that activity must be carried out by the executive director.]
This proposed new section removes the phrase "in the manner specified by the executive director" in paragraphs (a) and (b), and substitutes the phrase "in the prescribed manner." The amended section also adds paragraph 2, which requires the executive director to carry out any public consultation activity which is not required to be conducted by the applicant. The section now requires that before a decision is made to approve, reject, or require the review of a project application, the executive director must ensure that a program of public information and consultation be undertaken by either the applicant or the environmental assessment office in accordance with the regulations.
The new subsection increases the flexibility of the environmental assessment process by enabling public consultation to be undertaken by the applicant or the environmental assessment office. Giving the government the ability to undertake the consultation in some cases was strongly recommended by environmental organizations during recent consultations. The regulation on public consultation will explicitly set out the public consultation requirements, and therefore will promote greater predictability on the nature of the consultation activities required.
On the amendment.
G. Wilson: I have a couple of questions with respect to the amendment. Generally speaking, I think the amendment is a positive one. "In the manner specified by the executive director" is gone; that is good. But "in the prescribed manner" presumably opens it up for regulation again, so we don't know what it is going to be. We would prefer to have it stated here that it has to be in local newspapers, or whatever. However, I hope that the regulation would say that.
[ Page 8918 ]
As I say, unless I have missed something here, I think that the amendment is generally positive. My biggest question is: under section 2, why would you provide the power to the government to undertake the prescribed activity under section 1 if there was a failure to have that carried out by the applicant? In other words, what will trigger the government's taking on that action, as opposed to making a requirement for the applicant to do it themselves? Why can two classes of actions be taken, one at the cost of the taxpayer and the other at the cost of the developer?
Hon. J. Cashore: If we deem that the applicant was not in a position to carry out a fair public consultation, we may take on that responsibility -- for instance, where there could be considered to be a bias.
G. Wilson: If I can just clarify that a bit more: if there's a bias on whose part? One can assume that there will be various different propositions. Anybody who's a proponent for a project clearly is going to bias to provide the most positive information possible. Surely it's in our interests to have two sides review it. I wonder if any consideration was given to allowing advertising to be done by people who stand in opposition to a project? Or is that done on their own hook? Was any consideration given to that?
Hon. J. Cashore: We're having a little difficulty understanding the question. We're not exactly sure what the hon. member is referring to when he refers to someone in opposition to the project carrying out the review.
G. Wilson: Given that this section deals with public information and consultation, it requires:
"Before a decision may be made...an applicant, if and as directed to do so by the executive director" -- and once again it puts power into the hands of the executive director, but nevertheless -- "must carry out each or any combination of the following activities relating to the distribution of information about the project: (a) advertise the application in the prescribed manner; (b) conduct a program of public information and public consultation in the prescribed manner...."
"Public information" would assume that information on the project is going to be there for the public to weigh and consider as to whether or not they like it.
I understand that if we have section 16(2) in place to allow the government to take action, if they feel that the proponent is putting out only biased and inaccurate information, they presumably could meet their obligation under section 16(1)(b). I understand that the government may opt to say: "Look, you're not in a position to put out unbiased information; the government should do so." I wonder -- rather than having the government put the advertising in directly -- if any consideration was given to assisting any particular groups that may be there prepared to put out information contrary to that already being advertised by the proponent. I'm thinking of a controversial project -- a ferrochromium plant, as an example -- and whether or not section (2) will allow the government to directly finance or fund those agencies.
Hon. J. Cashore: The answer is no.
K. Jones: In section 16(1)(b) of your amendment, you refer to "public information and public consultation in the prescribed manner." I presume, based on the placement of "in the prescribed manner," that you're only referring to the public consultation and that the public information can be in any form. Otherwise you would need to move that phrase "in the prescribed manner" into the space after "program" -- "conduct a program in the prescribed manner of public information and public consultation." Otherwise the public information has no directive to it.
Hon. J. Cashore: No, I disagree. The way it's worded here, it modifies both.
J. Tyabji: I have a few questions under this section. I am sure the minister knows what I'm going to ask, since I started to bring it up earlier. I have in front of me some submissions on which I wanted to ask questions with reference to this amendment. From the time that the bill was tabled in the House to the time that the amendments appeared on the order paper, the minister received -- and I am sure he knows that I have as well -- a list of suggestions from the West Coast Environmental Law Association, the Canadian Earthcare Society and the British Columbia Environmental Network, to name a few.
In these suggestions, recommendations came forward specifically referring to section 16. For example, the B.C. Environmental Network says that public consultation should clearly be under the control of the environmental assessment office. While there has been some change of wording to section 16, this must be made more explicit and the process must be mandatory rather than at the whim of the executive director. The Canadian Earthcare Society says very much the same thing: that there be public information and consultation, not just through regulation but through legislation.
It is interesting to see the differences in legislation that has come before the House. For example, a precedent was set in another bill where ideological policy appeared in legislative form. Yet here, where we have an enabling bill, in a section headed "Public Information and Consultation," there is no legislation enabling public input at the table in a mandatory way.
The question I have for the minister is: why choose this avenue of amendment moving to a prescribed manner, which would be regulation and then discretion of the executive director under the new section 16(2)? One recommendation that came forward from the West Coast Environmental Law Association was that section 16 be amended by adding the following new subsection 16(1):
"Before a decision may be made under section 23, the project committee must prepare a public participation plan and conduct a program of public consultation that provides for adequate involvement and consultation with persons concerned about the reviewable project and satisfies any criteria for public participation and consultation prescribed by regulation."
[ Page 8919 ]
A second amendment, which is a bit more specific, is: "By replacing in subsection (b), 'conduct a program of public consultation' with 'participate in a program of public consultation conducted under subsection (1)'."
Why would the minister opt for a more nebulous way of referring to the public process in terms of consultation?
Hon. J. Cashore: This suggestion would take any responsibility away from the proponent for consulting with the public. Within the spirit of this legislation, we believe that the proponent should be in a position of consultation with the public. We believe that is in the proponent's interest and also in the public's interest. I would point out, hon. member, that there have been a number of suggestions with regard to amendments. We have considered them carefully. This is one that we considered and did not accept.
J. Tyabji: With regard to the minister's statement that this is in keeping with the bill's emphasis on the applicant approaching members of the public for the consultation process in a prescribed manner, in the regulation that prescribes the manner of consultation I am assuming that we will see that the onus will be on the applicant to seek public input. Or will we have a public hearing process that is under the guidance of the executive director, similar to public hearings that we see in local government on project review?
Hon. J. Cashore: I would point out that this is consultation on the application.
C. Serwa: Noticing the lateness of the hour, recognizing and appreciating that some of our members have been travelling since 4 o'clock this morning on a Monday just to get to Victoria, I move that the committee rise, report progress and ask leave to sit again.
[10:15]
Motion negatived on the following division:
| YEAS -- 16 | ||
|
Chisholm |
Dalton |
Gingell |
|
Wilson |
Stephens |
Hanson |
|
Serwa |
Neufeld |
Symons |
|
Tanner |
Hurd |
Warnke |
|
Anderson |
Jarvis |
K. Jones |
| Tyabji | ||
| NAYS -- 32 | ||
|
Petter |
Perry |
Marzari |
|
Boone |
Priddy |
Edwards |
|
Cashore |
Jackson |
Beattie |
|
Schreck |
Lortie |
Hammell |
|
Lali |
Giesbrecht |
Conroy |
|
Evans |
Pullinger |
Ramsey |
|
Lovick |
Copping |
MacPhail |
|
Barnes |
Zirnhelt |
Cull |
|
Sihota |
Miller |
Dosanjh |
|
O'Neill |
Hartley |
Krog |
|
Randall |
Brewin | |
C. Serwa: On section 16, on the amendment, the amendment says that the public consultation and advertising of the project application will occur in a prescribed manner. Would the minister indicate to me where the initiative for the "prescribed manner" came from?
Hon. J. Cashore: On some parts of the amendments in this section, the recommendation came from environmental groups, but this particular recommendation came from industry because of wanting greater certainty on the issue of consultation.
C. Serwa: It's rather interesting, because whether this came from the environmental groups or from industry, as the minister indicates, what is critical here is the departure from previous sections we had debated. In this particular section, the minister, by indicating "prescribed manner" -- I presume, with respect to regulations, that will be developed -- has somewhat restricted for the first time in this piece of legislation the power and scope of authority of the executive director. I would like to ask the minister why he has deemed that in this specific instance that power should be somewhat controlled, where he has been reluctant to impose any sense of direction or control on the executive director throughout previous sections that we've discussed? This seems to be a radical departure from the drafters.
Hon. J. Cashore: It made good sense based on the input.
Amendment approved on the following division:
| YEAS -- 32 | ||
|
Petter |
Perry |
Marzari |
|
Boone |
Priddy |
Edwards |
|
Cashore |
Jackson |
Beattie |
|
Schreck |
Lortie |
Hammell |
|
Lali |
Giesbrecht |
Conroy |
|
Miller |
Sihota |
Cull |
|
Zirnhelt |
Barnes |
MacPhail |
|
Copping |
Lovick |
Ramsey |
|
Pullinger |
Evans |
Dosanjh |
|
O'Neill |
Hartley |
Krog |
|
Randall |
|
Brewin |
| NAYS -- 15 | ||
|
Chisholm |
Dalton |
Wilson |
|
Stephens |
Hanson |
Serwa |
|
Neufeld |
Symons |
Tanner |
|
Hurd |
Warnke |
Anderson |
|
Jarvis |
K. Jones |
Tyabji |
Section 16 as amended approved.
On Section 17.
G. Wilson: I understand that my colleague for Richmond Centre wants to initiate some debate on this
[ Page 8920 ]
section 17, so since he's hasn't been an active member in this debate, I'll yield to him.
D. Symons: I notice quite a few words in here that I'm not quite sure what the minister might have in mind when he uses them. I notice the second word in section 17(1) is "soon." According to the Concise Oxford Dictionary, "soon" is an adverb meaning "not long after the present time or time in question or after specified time, in a short time," as in "shall soon know the result; was soon convinced of his error" -- that's very appropriate -- or "arrived soon after the gate was closed...."
[10:30]
The Chair: Order, hon. member. We are on section 17, and unfortunately props are not allowed during presentations.
Interjection.
The Chair: It is a prop, in the opinion of the Chair, and I would ask the member to confine his remarks to section 17, and that is what we're on.
The member for Saanich North and the Islands, on a point of order.
C. Tanner: Mr. Chairman, on five occasions in this House I have had a dictionary here to help me find a definition and I have quoted from it, and no Chair has every said I was out of order before. Why would the Chairman make a specific ruling tonight?
The Chair: Hon. member, the Chair has just ruled, and rulings from the Chair are not to be challenged. The member for Richmond Centre continues on section 17.
D. Symons: Thank you, hon. Chair. I still have a problem, because I want the minister to define for us the word "soon" that is used in this bill. Would he define it?
Hon. J. Cashore: It's very clear that the term "soon" is affected by the way in which the sentence is written. It says: "As soon as practical...."
D. Symons: The next word I am concerned about in this bill is the word "practical." I understand why "as" is there, but "practical" is maybe not too practical a word to use in this case. I think it's impractical that we should be standing here discussing this bill at this particular hour. But the government seems to have deemed that it's practical and that it is what we should be doing this evening. Is that the meaning the minister has in mind for this word "practical"? Can he give us a definition of "practical" in this bill, please?
Hon. J. Cashore: I think it's very important that we have legislation that's based on the ability of individuals to apply common sense.
C. Serwa: I'm certain that the hon. minister didn't want to impugn the credibility of the hon. member with that remark. Perhaps before I continue, on reflection the minister would be willing to take that remark back.
Hon. J. Cashore: Hon. Chair, there was no intent to impugn the hon. member whatsoever. There is an intent to respond to his question, and my response was that one needs to apply common sense in dealing with the definitions of these words. I would commend that to the House.
C. Serwa: I think a great deal of this tiresome debate could have been avoided if common sense had been injected into this legislation, specifically with respect to this section 17. We have seen very little in the way of common sense from the hon. minister or from the government of the day.
On section 17, perhaps the minister can explain to me why the executive director has such an arbitrary choice of selection with respect to the members who will serve on the project committee. In spite of the influence and the impact on various government agencies or individuals, there is no compelling reason to have any of the people who are directly impacted by a project represented on the project review committee. Instead, it just says: "The executive director may invite...." Here we go again with the word "may"; there is no "must" or no compelling reason. Perhaps the minister can explain to me why it's not important that other jurisdictions must be represented.
Hon. J. Cashore: It's in their interest to be represented, therefore there's not an imperative required there.
C. Serwa: That didn't translate into much of an example of any common sense at all. These other parties are directly impacted by the potential project if legislation like this doesn't preclude any growth or potential project developments in British Columbia. But the reality is that if someone is going to put forward a project as a proponent, then the other agencies should be given an opportunity to be on the project review committee. I'm appalled that the minister fails to understand that different levels of government should in fact be represented whether they're duly elected aboriginal groups of individuals, other segments of the provincial government or different government departments or agencies of the government of Canada. I don't see how the minister can consider that there is any point in this legislation unless those representatives are guaranteed an opportunity to be part of that project review committee.
Hon. J. Cashore: The way this is drafted makes every reasonable effort to ensure that those parties are represented.
G. Wilson: Section 17 is really one of the main items in this bill that needs thorough attention and debate, because it is this committee and the power of this committee, as discharged by the executive director, that is going to make a determination as to whether many of these projects will go forward. This is a critical
[ Page 8921 ]
part of this bill, and it needs to be looked at with a great deal of care. I must say, by way of editorial commentary -- to the extent that the Chair will allow -- that I find it bizarre that of all the bills we would choose to be debating at 10:40 p.m., at this late date in July, it is Bill 32, which isn't even going to go into effect for over a year. Having said that, if we want to spend our time doing that as opposed to putting something else together which might have a higher priority....
The Chair: On section 17.
G. Wilson: On section 17, let's look at two things that initially cause some concern. First of all, section 17(1) says: "As soon as practical after an application for a project approval certificate has been filed at the project registry, the executive director must" -- this is by law -- "establish a project committee." He or she is required to do that.
Then it says:
"The executive director may invite" -- not will, not shall, but may -- "any of the following to nominate one or more individuals to represent the nominator on a project committee established under subsection (1): (a) a ministry or agency of the government of British Columbia; (b) a department or agency of the government of Canada;" -- and the minister knows full well that no legislation in the province of British Columbia can compel the federal government to do anything, so that in itself is highly suspect -- "(c) a municipality or regional district" -- are we going to amend the Municipal Act to require that participation? Because that is the only way that requirement can be done on that basis -- "(d) a first nation whose traditional territory includes or is near the site of the project;" -- if the invitation is extended, is there going to be some manner of compelling that attendance? I would suspect not -- "(e) any of British Columbia's neighbouring jurisdictions in the vicinity of the project."
Clearly we have no jurisdiction over any of those. Interestingly enough, the key here is that you must set up an established project committee; that has to happen. But this government has absolutely no binding requirement on any of the various agencies to determine that the project committee will in any way be constituted as this legislation says it will be. There is nothing in this government's power to mandate it so.
Let me ask the minister this: if this executive director must establish a project committee, and the agency of the government of Canada says, "Forget it; we are not going to participate," and the government of some neighbouring jurisdiction says, "Sorry, we are not interested," and the first nations whose traditional territory is nearby says, "We are busy negotiating a land claim. Deal with it yourself; it is not an area that we have any concern for," and a regional district located in the vicinity of the project says, "We are sorry, but we don't deem our interests affected, so we will not sit on your committee," what does that leave for this minister with respect to his project review committee? How does this minister intend to enforce this section of the legislation if those jurisdictions say they are not interested?
Hon. J. Cashore: Current practice and experience indicates that these parties are very interested in participating. This is the experience of this kind of a measure, and there is no question that there will be very appropriate and full participation as a result of this invitation.
G. Wilson: Let's just assume for argument's sake that you are going to get an eager and full participation of each of these groups. Let's assume that everybody plays along and they all put names forward. It says here: "The executive director may invite any of the following to nominate one or more individuals." The executive director is the chair of the project, and it says that: "a project committee is composed of all of the nominated individuals." So here you have a situation where a first nation may put forward one or more, let's say 50 or 20 names -- how about five names? However many you put forward, it says the project committee is composed of all the nominated individuals.
How on earth are you going to have a committee that's going to have any kind of ability to conduct work if you have the ministry or the agency of government putting forward its nominated numbers -- two, four, six, 20 or 40 -- and then a department or agency of the government of Canada, maybe 15 or 20.... Goodness knows, they'll want something to do in the next little while. The municipality or regional district won't have many, so they'll probably only put forward one or two. A first nation may decide that their interest is deemed necessary and will maybe put five or six together, and any of British Columbia's neighbouring jurisdictions may add another six or seven.
These committees, it says, will be put together after an application for a project approval certificate has been filed. So this isn't a provincewide committee that's going to be reviewing all the projects now before it, like a round table on the environment. This is a committee struck for each project filed.
Talk about unwieldy big government that isn't going to function! I can't imagine how such a committee is going to operate with any degree of effect in the province. Maybe the minister could tell us how he thinks it's going to work.
Hon. J. Cashore: The three processes that exist in the province now -- the major project, energy development and mine development review processes -- are all set up in this same way. The fact is that under these current processes the number of participants is self-limiting, because each organization must allocate its resources among many competing priorities.
Listening to the tenor of what the hon. member is saying, it really does play to a very negative concept of the way in which these different participants would be expected to take part. The fact is that experience has shown that in this part of a process the opposite is the case. The experience has been that these parties willingly come to the process and don't seek to be frivolous or mischievous by stacking the committee or anything like that.
[ Page 8922 ]
I reiterate also that this is an advisory committee; it's not a committee that has a veto power. It meets, reviews and advises.
[10:45]
G. Wilson: It clearly has been my experience on a committee struck to deal with a very specific set of guidelines and conditions -- the foreshore advisory task force I referred to earlier, which was not unlike what was attempted here that if it hadn't been for the order of the minister for people to attend, they would not have attended. It wasn't because they weren't interested but because they had to deal with many other pressing items. In fact, they found it a difficult part of their job because it wasn't defined within the functions of their duties.
Given that you've got this agency, which is essentially the ministry of the government of British Columbia -- that is, the government advising the government; a department or agency of the government of Canada, more government advising government; municipal and regional district government advising more levels of government; a first nation government advising further levels of government; and any of the neighbouring jurisdictions in the vicinity of the project, and one would assume those were governments that were going to come in from outside British Columbia to advise the government, where in all of this process is the public representation on these committees? Why is there no representation by the public on these committees?
Hon. J. Cashore: Public hearings are in phase three, not in this phase of the environmental assessment process.
G. Wilson: I'm not talking about public hearings. I'm talking about the provision of advice to government from people who may be in a position to know. There are a lot of very well-informed people in local areas who may be in a position to know about issues.
The minister suggested that there were three other review agencies of government constituted in exactly the same way. Could the minister repeat what those three were? I wasn't quite sure about that.
Hon. J. Cashore: The three review processes that are very similar in regard to the point the hon. member is referring to in this section are the major project review process, the energy project review process and the mine development assessment process.
J. Tyabji: Section 17(1) says: "As soon as practical after an application for a project approval certificate has been filed...the executive director must establish a project committee". The component of the project committee is at the discretion of the executive director. I have two questions. Can anyone other than the people who are under subsection (2) be on that committee? Secondly, how is the committee constituted if the executive director chooses not to invite nominations from the groups listed under subsection (2)? How else can it be constituted? Who else can be on that committee?
Hon. J. Cashore: No one other than those defined in the legislation can be on the committee.
J. Tyabji: If no one other than the people listed under subsection (2) can be on that committee -- being basically the ministry or agency of the government of B.C. -- then you have the government of Canada, the local governments in the vicinity, first nations with traditional territory near the site and the neighbouring jurisdictions, then what is the minimum number of invitations to nominate from that group? Five groups are listed under subsection (2). For example, could the executive director choose to allow one of those groups to nominate, and not the other four?
Hon. J. Cashore: There is no minimum number of people who can be on the committee. That will be decided on a project-by-project basis.
J. Tyabji: So what the minister is saying is that although we can't go outside the bounds of these five groups from which nominations come, we could foresee a situation where only one of the five groups provided the people sitting on the project committee, and that that would be at the discretion of the executive director. Is that correct?
Hon. J. Cashore: That is correct.
J. Tyabji: In effect, what we're saying is that the project committee could.... Let me ask one more on that, and then go back to the suppositions. On the last question, since the minister said there was no minimum number out of these five, is it also foreseeable, other than there just being the one, that the executive director could opt not to have any of those five groups nominate? In which case, because the executive director is not mandated to do that, would the executive director be the project committee?
C. Serwa: It's a pleasure to get up. It's no small wonder that this government is in a tailspin with sections like section 17, and that there again is a loss of public confidence in this particular government. We have here in section 17 another opportunity for friends and insiders of this government to be appointed by the executive director. There is no opportunity for the communities that will be affected to have the right to appoint a person to represent the community. They are appointed by the executive director. They appear to be drawn either from the widespread group of newly emerging friends and insiders out of Alberta hastening to this flush land of British Columbia, or they are drawn from the public sector employees. There's no opportunity for any of these agencies or for the community at large that is affected to choose their representative on the review committee. How can anyone in their right mind have any confidence in a piece of legislation when it's rigged in this way?
[ Page 8923 ]
There can be no confidence that the community interests are in fact represented because there is no opportunity for the communities in question that will be impacted by the project to have a fair and reasonable chance of selecting whomever they want to sit on that particular committee. If there was any real concern on the part of the Minister of Environment to bring this legislation forward, and if there was any objectiveness in this particular parcel of legislation, that option would be available, but it's not available. The executive director, with his expansive powers under the absolute direction of the government of the day, will choose friends and insiders, and community interests will not be attended to because there's absolutely no opportunity in this legislation -- certainly not in section 17.
Hon. J. Cashore: I really don't understand what the hon. member is referring to. The clause says: "The executive director may invite any of the following to nominate...." Then it goes on to list "a municipality or regional district," and it refers to "first nation." They would be invited to nominate, and their role would be to represent their community.
G. Wilson: Surely the minister recognizes that the way this is worded, with such a project review committee really at the discretion of the executive director, there's no provision in here for the provision of advice. That's what the purpose of this committee is all about -- to provide to the minister advice, analysis and recommendations respecting these projects and, with respect to written comments received, and their potential effects, and some way of preventing or mitigating these effects. The minister would surely recognize that one of the key proponents in the provision of advice to the minister would be the public. If a project is moving forward, a lot of people in communities -- especially small, rural and isolated communities -- have a great deal of knowledge about the potential impact on areas in their neighbourhoods. A lot of them provide a good deal of advice to local government. Advisory planning commissions, for example, provide invaluable advice to local representatives elected to municipal governments. They have not only firsthand knowledge of the history and evolution of that land use but also a great deal of understanding of the local environment. I find it most strange, if we're going to construct these review committees, to not somehow invite public participation so they can provide an opportunity for analysis, input and advice from the local community, other than that which may come from the municipality or regional district.
In the amendment, which unfortunately was ruled out of order, we tried to get the referral process to the elected officials, where there could be proper debate at a duly constituted public meeting with publicly elected officials, who could debate that either in committee or in session and make recommendations to the minister. We tried to propose that. We're now attempting to get the minister to recognize that if that political process is there, there should be a process for community input where decisions and recommendations are made through a referral process that includes the community.
As this is written right now, the executive director may invite only one of those groups that are listed here, essentially establish a committee of those individuals, and proceed to provide the advice, analysis and recommendations respecting the reviewable projects to the government from a highly biased, highly segmented group of people -- if that's the choice of the executive director. Surely the minister has to recognize that is a recipe for a great deal of disharmony in the community; it's a recipe for this government to once again walk itself into a process of difficult environmental decision-making that isn't going to satisfy the communities it affects. There's no provision here, save and except for the public hearing process.... We all know that the public hearing process is a dubious tool at best. Bamberton is the classic example, if you want to look at a stacked public hearing process.
We all know that the best way to do it is to include the public in the decision-making at the committee level, and I question why the minister has not done so in the provision of these committees -- if indeed these committees are to provide the kind of advice that I think he's seeking.
Hon. J. Cashore: This section does not preclude the role of public advice coming in. It comes in, as I've outlined, especially in the first nations, municipalities and regional districts. Also, the public has an opportunity to contribute to this exercise by providing comments on the contents, adequacy and specifications of the project application report. The project committee is charged with reviewing the comments that have been provided by the public on the project, and using them to form its conclusions and recommendations. They have a very clear responsibility with regard to public input and response to those specifics.
[11:00]
In addition, the participation of local and regional government will provide a direct opportunity for the committee to be apprised of and to consider local and regional issues of concern. Also, when we go on to the next section, it carries out in some more detail how the project committee interfaces with the written comments of the public. There's no way in which this section precludes the role of the public to make comment. Again, the way this section is written is pretty standard with regard to this part of the process.
G. Wilson: Is it the intention of the government that once they are struck, in whatever form they may eventually take, the deliberations of these committees are going to be in public? Will they be publicly constituted meetings? Will the meetings of these committees be advertised? Will people have an opportunity to go to them? Section 17(5) suggests quite clearly that the committee may, by regulation, determine its own procedure and provide for the conduct of its meetings. It would be interesting to know whether or not the minister has....
C. Tanner: Point of order, Mr. Chairman. Could the Chairman tell the members out here whether or not he's using a dictionary?
[ Page 8924 ]
The Chair: I think the member should take his seat. That is not a valid point of order. The Chair has made a ruling, and the Chair's rulings are not to be challenged.
Interjection.
The Chair: The member will not challenge the ruling of the Chair.
C. Tanner: I'm not....
The Chair: The Chair has ruled....
C. Tanner: I'm not challenging the ruling of the Chair. I'm asking the Chairman whether or not he's using a dictionary. It's a simple question.
The Chair: Would the member please take his seat.
C. Tanner: Doesn't the Chairman want to tell this member whether or not he's using a dictionary?
The Chair: Hon. member, will you please take your seat.
C. Tanner: Mr. Chairman, if I take my seat, may I address the...?
The Chair: You may address your seat. Would you please take your seat, hon. member.
G. Wilson: My question to the minister is whether or not, given subsection (5) of section 17, the minister intends these meetings to be held in public. And will these meetings be advertised for public participation?
Hon. J. Cashore: The procedures of the project committee will be determined by regulation.
G. Wilson: But the minister, I'm sure, is going to have a hand in these regulations -- at least, if it happens soon. Since we are here now after 11 o'clock at night on a bill that isn't even going to be introduced with regulations for a year -- which is bizarre, given the pressing legislation that's before this House which we should be debating -- maybe the minister could tell us whether he envisages that such regulations will provide for public meetings of these established committees.
Hon. J. Cashore: It very well could at this stage, but I would not want to prejudge the consultation that will go into the development of the regulations.
D. Symons: At this late hour one, of course, gets troubled by the use of the words. I was perturbed by the answer given by the minister because he indicated it "may" in the future.... I think the hon. member before me was seeking some assurance about what was going to happen in the future. Much of this bill deals with the future, but it also deals with the words that we're using in here.
I notice that we have "as soon as practical after an application for a project," and application can mean many things. Application means putting one thing to another. It could mean employment of a means of bringing something to bear upon a particular case. It could mean relevance or applicability -- and I think relevance in this discussion at this hour of the night is something we should really consider -- and diligence. Indeed, the opposition is being diligent in continuing with this debate, even though we'd prefer to be home. It could mean making a request, and we have made a request through the Chair that we report progress and move on for the evening and go home. So all of those words come under the meaning of the word "application," and I'm wondering which application the minister would put to this particular word in the bill.
Hon. J. Cashore: It's the application for a project approval certificate.
A. Warnke: I think the member for Richmond Centre introduced a very valid point when he took a look at the phrase "as soon as practical." I want to bring to the attention of the minister Greenway v. Selected Risks Insurance Company. In that particular case, it was definitively established that when we are using terms such as the minister intends.... To try to establish the meaning of a reasonable time, the words proposed in this particular bill are non-applicable. Therefore, based on the court ruling in Greenway v. Selected Risks, the proper phrase is "as soon as practicable." It is more appropriate in this particular instance, because it means a reasonable time. Perhaps this is hitting at some of the common sense that the minister claimed earlier. Perhaps the minister has introduced a bill with the incorrect phrase.
Accordingly, I move an amendment to the Environmental Assessment Act to delete "as soon as practical" in line 1 of section 17, and in its place substitute the words "as soon as practicable."
On the amendment.
Hon. J. Cashore: Again, we have consulted with legislative counsel on this point. It is my contention that this proposed amendment is a redundant amendment. It does not put forward anything that is fundamentally different from the wording that is in the bill at the present time, and therefore I think it should be declared out of order.
A. Warnke: I believe that this section we are addressing has a particular intent. That's the nature of this particular section. I would suggest very strongly that if the phrase is inappropriate -- and it certainly is inappropriate in the legal context -- it therefore alters this bill altogether. If the phrase remains the way it is, I'm afraid the minister is advocating a change in the principle of the bill.
Interjection.
[ Page 8925 ]
A. Warnke: We're addressing the amendment. The amendment makes it very clear that we are trying to establish some consistency throughout the bill before us, especially in this section. Since the words "as soon as practical" introduce this particular section, the nature and significance of the section is altered compared to the original intent that I believe the minister wanted to put forward in his bill. In other words, we are proposing a friendly amendment to ensure that the intent of the bill remains intact.
[E. Barnes in the chair.]
Hon. J. Cashore: I would again point out that the difference between the terms "practical" and "practicable" is vague. In common usage, this would not substantially change the meaning of this clause in this section. I would therefore recommend that this amendment be declared out of order, because it does not in any way provide something other than a vague modicum of difference between the terms "practical" and "practicable."
A. Warnke: In proposing this friendly amendment, we are trying to help the minister and help the bill. In the case of Greenway v. Selected Risks Insurance Company it was firmly established that the words the minister has chosen to begin section 17 with are not synonymous with "as soon as possible." In short, what is firmly established here is the proper legal term that is intended to make the bill legally sound and consistent with other aspects of the bill. Since the source is quite obvious, I can assure the minister that "as soon as practicable" is not a phrase that is intended to alter this section. "As soon as practicable" means reasonable time, and any other phrase in the legal context would be looked at far differently. As established in the case I have cited, it will not necessarily mean what the minister intended; in other words -- in commonsense terms -- as soon as possible. It is in this context that I would hope the minister would once again look upon this amendment as a friendly one, because it is a friendly amendment in a legal context, which I'm sure would sharpen what is intended in this section, help the minister out and help the bill out accordingly.
The Chair: I'll call the question if there is no....
C. Serwa: On a point of order, the Chair hasn't indicated whether the amendment is acceptable or not. If it is acceptable, I think the vote on the amendment would be in order.
The Chair: The Chair is satisfied that there is, shall we say, sufficient subtlety in the choice of language that I think the best way to settle the matter is to put the question.
[11:15]
Amendment negatived on the following division:
| YEAS -- 16 | ||
|
Chisholm |
Reid |
Dalton |
|
Wilson |
Stephens |
Hanson |
|
Serwa |
Neufeld |
Symons |
|
Tanner |
Hurd |
Warnke |
|
Anderson |
Jarvis |
K. Jones |
| Tyabji | ||
| NAYS -- 32 | ||
|
Petter |
Perry |
Marzari |
|
Boone |
Priddy |
Edwards |
|
Cashore |
Jackson |
Beattie |
|
Schreck |
Lortie |
Hammell |
|
Lali |
Giesbrecht |
Conroy |
|
Evans |
Farnworth |
Pullinger |
|
Ramsey |
Lovick |
Copping |
|
B. Jones |
MacPhail |
Zirnhelt |
|
Cull |
Miller |
Dosanjh |
|
O'Neill |
Hartley |
Krog |
|
Randall |
Brewin | |
C. Tanner: My point of order is a very special case in that the member for Vancouver-Point Grey is 39 today, and I thought we should wish her a happy birthday. [Applause.]
The Chair: Order, hon. members. That was not a valid point of order, hon. member. However, the Chair thinks that it is a reasonable abuse of the rules. [Applause.]
Hon. T. Perry: On a point of order, hon. Chair, the member for Vancouver-Point Grey, whom I formerly served with in the double-member riding, is actually 29.
The Chair: Ditto on my previous ruling, hon. member.
C. Serwa: We have done quite a job here on section 17. We have indicated that the executive director must establish a project committee, and yet he may or may not appoint anyone to serve on that project committee. There are no numbers; the project committee could be in name only. There is no guarantee or demand, and there are no explicit instructions in the legislation to say that the executive director must appoint individuals to serve on it -- it says "may."
The other aspect of this particular section that really concerns me is subsection (5): "Subject to the regulations, a project committee may (a) determine its own procedure, and (b) provide for the conduct of its meetings." The reality is that items such as the small, independent hydroelectric power projects would have the opportunity to require perhaps hundreds of these committees to look at the individual characteristic of each project. In this particular situation, I cannot believe that there wouldn't be any parameters designed and established through legislation -- or even regulation, but there is no indication of that -- so that each committee didn't reinvent the wheel and determine its own procedures as it was structured. If we are going to
[ Page 8926 ]
have effective environmental assessment legislation, it is incredibly important that there be consistency. Consistency does not appear to be part of the responsibility of the executive director in the choice of members to serve on review committees. It also seems to be lacking in the latitude allowed each project review committee in determining its own procedures. How in the world can any effort that even remotely resembles consistency be enabled by this section?
Hon. J. Cashore: That is enabled by the regulations, and by the fact that the project committee is either chaired by the executive director or by a member of the executive director's staff.
C. Serwa: I am certain that there was some common sense exhibited in the response from the minister. I didn't get to hear much of it. Nevertheless, I have significant and substantial concerns with respect to consistency, fairness and balance being part and parcel of this particular process. I fail to recognize or appreciate how that consistency can be determined by a committee that can choose its own procedures. So you have different procedures on very similar types of projects; you have review committees running all over the province doing their own thing willy-nilly. That doesn't seem to be appropriate, fair or consistent, and it doesn't seem to serve the environment in any positive way.
Hon. J. Cashore: The consistency is provided by the office of the executive director, and that is how the consistency is ensured. The project committee is an advisory committee. It's up to the executive director to ensure that the process operates in a way that enables it to serve the purposes of both protecting the environment and expeditiously protecting the interests of the proponent.
C. Serwa: Going back to the points the minister made, section 17(4) says: "The executive director is the chair of a project committee unless the executive director delegates the responsibility of chairing that committee to another individual employed in the Environmental Assessment Office." It's not unrealistic to expect that there will be literally hundreds of these committees around the province; and there is no possibility of the executive director or his nominee chairing and controlling them, and being consistent in the application, the order, the process and the procedure of the specific committees. The magnitude of the task is simply enormous, because the minister has not made it clear that only major projects are to be reviewed. All projects are subject to this review process, including controversial ones, such as the independent power projects which utilize water resources. The minister knows full well that the Ministry of Environment is taxed to the hilt even trying to handle the number of applications for water licences, let alone the intensive scrutiny of all the characteristics -- the environmental, the social, the economic and all the other ones -- that have been thrown in here. So the minister fails to give me any confidence in his consistency of approach in this particular situation.
Hon. D. Miller: Having listened carefully to the debate and having had some experience with respect to the system we now know, as it was administered by the former government, I just want to pose a simple question to the minister with respect to the section. Very briefly, a number of years ago the previous government dreamt up a proposal that was not only totally out of sync economically but, I think, fabricated as part of an election ploy. Nonetheless, under the environmental assessment there were public hearings held on the Kitimat-Terrace port project -- I think the member for Okanagan West might recall it, because he was the Minister of Environment of the day. In pursuing that issue, on behalf of my constituents, of course, I approached the minister to request that a public hearing be held in my community of Prince Rupert, which obviously was going to be or could be severely impacted by the results of that foolish initiative, and the minister turned me down. My question is very simple: under the current legislation we're dealing with now, could that happen?
[11:30]
Hon. J. Cashore: Public hearings are required in phase three of the process for projects that get to that stage, so it depends on the place that a project gets to within the review process. As I pointed out before, there are three phases to the process, and they are cumulative. Each phase in the process leads into the next phase, should that be required.
C. Serwa: On the specific topic the minister raised, I think he recalls coming down to my office, where we had a chat late one evening on that particular issue. We had a very good, candid discussion. The minister had a direct opportunity.
Just to change tack, we'll get back to section 17. I talked fairly extensively about the number of project committees that would potentially abound in the province, in view of independent power projects. Because of the controversial nature of changing or damming water courses with respect to fishery and related concerns, I can see that there will be a great many committees structured in the province. It is not possible that the executive director or his nominee can possibly chair all of these committees, so we do not have the potential for consistency. We go back to my original question: why would we draft in legislation a process that will require each of the project committees to establish its own procedure? That doesn't seem to be rational or display much in the way of common sense, and it certainly doesn't give the public an opportunity to be confident about the objectivity, fairness and balance of these structured committees. Through the process of regulation, a procedure surely has to be developed that must be followed by all the committees that will be established throughout the province. That is the only opportunity for fairness and consistency. The answer that the minister gave with respect to the executive director or his nominee is not relevant. It's not possible to attain.
[ Page 8927 ]
Hon. J. Cashore: What the hon. member is calling for is provided for in clause 17(5), which says: "Subject to the regulations...." The hon. member has just called for some sort of regulation that would ensure that certain conditions were put in place, and subject to the regulation, into which the hon. member will have an opportunity to have input.... That is where that concern will be addressed.
D. Symons: There are quite a few words in this bill that need scrutiny. We discovered earlier that the government didn't want to make a correction which would make this bill read properly, legally, and I guess the minister and the government members are not aware how much the fine nuances of a word can create hours, if not days, of legal battles in the courts. Indeed, they could end up doing that in this House if this government doesn't feel moved to allow the House to rise and go home. Unfortunately, the government seems persistent in wanting to hear my concerns about these words tonight.
We find that it says in 17(1): "As soon as practical after an application for a project approval certificate has been filed...." We have many meanings of the word "filed." The one the minister might be familiar with is an instrument of steel which is used on roughened surfaces, and actually you have roughened my feathers by keeping us here to an hour that's moving on toward midnight. I doubt if that's the "filed" the minister means here. It could also be a stiff pointed wire on which documents are run for keeping. It's not quite that, but we're getting closer. We may place on file or among public records, submit applications, etc. I rather suspect that that's the meaning they have here for "filed." But we also find that "file" is a line of people, one behind another, such as members of this House filing out the door to go home to bed at a decent hour. Which meaning of the word "file" does this minister have in mind?
C. Tanner: My problem with the first subsection of section 17 in Bill 32 is the contradiction that exists between "as soon as practical" and "must," in the third line of this section. On the one hand, we are saying that the director must do this, with all sorts of conditions imposed afterwards. On the other hand, we're saying as soon as practical -- practicable is what the minister meant to say. Therefore I have suggested an amendment which removes "As soon as practical" from that sentence. It would then read: "After an application for a project approval certificate has been filed at the project registry...."
The Chair: Does the member wish to speak to his amendment?
On the amendment.
C. Tanner: This solves the problem that was illustrated by my legal friend to my right here; it resolves the problem my scholastic friend on the left had. More remarkably, it resolves a problem for the minister, who apparently has neither legal nor scholastic references. This resolves the problem we both had and defines that section more clearly. I would suggest that this friendly amendment should be acceptable to the minister.
Hon. J. Cashore: That is not acceptable. We require that phrase to indicate that it must move appropriately and as soon as practical.
C. Tanner: I believe the minister said "as soon as is practicable," rather than what we have here. If that was the case....
Interjection.
C. Tanner: It wasn't the case. Well in that case, I do believe the House should move this friendly amendment, merely to clarify that paragraph for all members on this side and, I suspect, even some on that side.
The Chair: Has the member made a motion?
C. Tanner: I move that amendment.
Amendment negatived on the following division:
| YEAS -- 16 | ||
|
Chisholm |
Reid |
Dalton |
|
Wilson |
Stephens |
Hanson |
|
Serwa |
Neufeld |
Symons |
|
Tanner |
Hurd |
Warnke |
|
Anderson |
Jarvis |
K. Jones |
| Tyabji | ||
| NAYS -- 31 | ||
|
Petter |
Perry |
Marzari |
|
Boone |
Priddy |
Edwards |
|
Cashore |
Jackson |
Beattie |
|
Schreck |
Lortie |
Hammell |
|
Lali |
Giesbrecht |
Conroy |
|
Miller |
Cull |
Zirnhelt |
|
MacPhail |
B. Jones |
Copping |
|
Lovick |
Ramsey |
Farnworth |
|
Evans |
Dosanjh |
O'Neill |
|
Hartley |
Krog |
Randall |
| Brewin | ||
Hon. J. Cashore: I move that the committee rise, report progress and ask leave to sit again.
Motion approved.
[11:45]
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 11:46 p.m.
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