1994 Legislative Session: 3rd Session, 35th Parliament
HANSARD
The following electronic version is for informational purposes only.
The printed version remains the official version.
(Hansard)
MONDAY, JULY 4, 1994
Afternoon Sitting
Volume 17, Number 6
[ Page 12609 ]
The House met at 2:07 p.m.
Prayers.
M. Farnworth: Hon. Speaker, I rise to make an introduction on your behalf. In the gallery today are Mr. Romeo Crennel and his wife Rosemary, who are visiting Victoria for the first time. Mr. Crennel is an assistant coach with the National Football League's New England Patriots of Foxboro, Massachusetts. The Crennels were in Port Coquitlam to attend a wedding of childhood friend and former B.C. Lions football player Larry Watkins to Cathy Mitchell, daughter of another former pro football player with the Winnipeg Blue Bombers, Bill Mitchell, who, incidentally, is a former high school coach of mine. Mr. Speaker, you were the best man at this most auspicious event, and it gives me great pleasure to ask on your behalf that all members join me in making these first-time visitors welcome to the chamber.
The Speaker: Thank you very much, hon. member.
The hon. member for Delta...Richmond-Steveston. You should get on your feet more often, hon. member, so I can remember who you are.
A. Warnke: Before any other statements are made, I would like to introduce, in the gallery, a longtime friend of mine -- we have known each other literally decades. He is also a groom of 50 hours. I would like the House to welcome Janice and Barry Kroening of Nanaimo.
Hon. D. Marzari: I'd like to introduce to the House my two sons, Robert and Daniel Straker, who are visiting here with their friends, Chris Peroni and Michael Farrara. Six hours ago they were standing ankle-deep in mud off the family cottage in the woods, and I thought it would be appropriate for this re-entry into society to stand knee-deep in question period. Would the House please welcome the kids.
B.C. 21 CAPITAL INVESTMENT PROJECTS
F. Gingell: As the Premier is aware, there have been many questions raised about the political manipulations of the B.C. 21 fund. Last week the Canadian Taxpayers' Federation accused the NDP of putting 94 percent of all B.C. 21 community grants into NDP ridings. Our own figures show that over 90 percent of all B.C. 21 construction capital has also gone into NDP ridings. Is the Premier comfortable with this glaring discrepancy, and how does he justify this blatant political pork-barrelling?
Hon. M. Harcourt: I'm not aware of that particular study, but it's wrong. It's wrong, and I'm quite prepared to get the detailed information on that. I can also say that it comes as a surprise to me, because just today the member for West Vancouver-Capilano announced the start of the Westview interchange -- it's finally being built.
An Hon. Member: Whose riding is that?
F. Gingell: The member for North Vancouver-Westview.
Mr. Speaker, the people of British Columbia might have been able to start to forgive the Premier if they had some sense that he had learned from his mistake and was now trying to do the right thing. The fact is that it's only getting worse. When the Island Highway, the ferry announcement and the Westview interchange are included, the percentage of money going to NDP ridings increases. Will the Premier do the right thing and throw off this shroud of hypocrisy that is the B.C. 21 fund and call an election so that the people of British Columbia can discuss the real issues of NDP pork-barrelling?
Hon. M. Harcourt: The Liberal opposition doesn't believe in financing capital projects. They don't believe in building the Westview interchange. They don't believe in building schools with borrowed money. Now they're standing up and saying: "We want more than we're getting." Hon. Speaker, I'll tell you what we'll bring back for a vote so we finally get a position out of this Liberal opposition. We'll bring back the B.C. 21 legislation and let them repent their mistake of voting against it last year.
D. Symons: My question is to the Minister of Employment and Investment. The minister has approved about $150 million for commuter rail, close to $300 million so far on the Island Highway and now, today, $33 million for the Westview interchange -- spend, spend, spend. Can the minister tell us how long it will take to pay off these debts with a 1-cent-per-litre gas tax and a $1.50-per-day car rental tax? How do you intend to pay for all of this, with a promise of no new taxes?
Hon. G. Clark: I'm glad the member has finally realized that we're making critical investments today to build the economy of the future in British Columbia. Fifty percent of the ferry fleet was built between 1962 and 1965. If we did nothing, then hundreds of millions of dollars worth of capital would be required within the next five years. Instead of that, we've got a rational, planned approach, with a vision for the future about ferry traffic which phases in capital spending over the next ten years. In addition to that, critical traffic problems like the Mary Hill bypass, the Johnson-Mariner overpass and the Westview interchange.... those investments today mean the economy and the private sector will continue to create jobs in the future and will be able to maintain our quality of life that we so desire in the lower mainland. These integrated transportation investments are critical to our future.
[2:15]
The Speaker: The hon. member has a supplemental question?
D. Symons: I thank the minister for that answer. I simply ask him: will he release today the financial plan of how this is going to be paid for?
Hon. G. Clark: The member should know that in the Build BC Act which was passed in the House the government cannot borrow more money than it has the ability to pay off -- the interest and the principal. The 1-cent-a-litre gas tax and the $1.50-a-day car rental tax go to pay for the transportation infrastructure. In addition, when it comes to commuter rail and to the exciting ferry vision and ferry plan we have for the future, all of that will be self-financed with user-pay. I would think those members would support user-pay, because it allows us to
[ Page 12610 ]
get on with investments today without burdening the taxpayer in the future.
EXISTING PROVINCIAL PARKS AND LAND CLAIMS
J. Weisgerber: My question is to the Premier. Last week the Minister of Aboriginal Affairs said the 23 new parks on Vancouver Island would be without prejudice to native land claims. Can the Premier tell us if our existing park system is also on the negotiating table? Is Strathcona Park, Carmanah Park or any other park in British Columbia on the negotiating table as part of aboriginal land claims?
Interjection.
Hon. M. Harcourt: I've just heard the name of a new park that's going to be added in the Leader of the Third Party's name: Jurassic Park.
Quite frankly, that fearfulness is unnecessary in British Columbia. We don't need to unnecessarily raise fears among British Columbians. We had a good discussion here during my estimates on the whole question of aboriginal land claims and on the settlement with the aboriginal people, which I believe very passionately will be in the best interests of aboriginal and non-aboriginal people.
The answer is no, we're not putting the existing parks on the table, nor has it been asked for them to be put on the table. They may be made available for aboriginal people to utilize the land, as they have for centuries, for the use and sustenance of the aboriginal community. I would hope that the hon. member would allow that treaty process to take place, and that he would show a leadership role....
The Speaker: Thank you, hon. Premier.
Hon. M. Harcourt: ...in diminishing the fear that British Columbians may feel about this process, rather than fuelling that fear.
The Speaker: Supplemental, hon. member.
J. Weisgerber: I'm reminded that in this chamber on April 20, 1989, the Premier moved an amendment to the debate on the Pacific Spirit Park to include the words "without prejudice." Will the Premier commit today that he will not negotiate our parks system on behalf of British Columbians as currency for aboriginal land claims settlements? Will the Premier commit that parks aren't on the table for land claims negotiations?
Hon. M. Harcourt: I think that this change of personality, this change of character, that's happening to the person who is hoping to become the leader of the Reform Party in this province -- and who was, in my opinion, a fair minister of aboriginal affairs and was trying to move British Columbia forward rather than backward -- is unfortunate. I would hope that this...
Interjections.
The Speaker: Order, please.
Hon. M. Harcourt: ...is just an aberration of his character and personality we're seeing right now...
Interjections.
The Speaker: Order!
Hon. M. Harcourt: ...with these kinds of fearful questions.
The Speaker: The answer, please.
Hon. M. Harcourt: To get to the point, Bud's Smith's misuse of the Pacific Spirit Park by trying to pull a cheap political stunt with a very good idea was one of the most shameful episodes in the history of this Legislature. And you know very well that that's all it was.
ELK VALLEY MINERS' RETRAINING PROGRAM
D. Jarvis: Last year the Minister of Mines introduced a training package worth over $50 million for the displaced Kootenay miners. It's now a year later and all her money has been spent. Almost everyone in the Elk Valley has a class 1 driver's licence, yet there are still no jobs. They're losing their savings, their homes and, unfortunately, their families. To the minister: how many new jobs did you create in the Elk Valley due to your training program?
Hon. A. Edwards: I'm not sure where the member gets the figure that $50 million went for.... I'm not sure where that figure comes from. I can assure the member that there are a lot more people in the Elk Valley who now have their class 1 driver's licence and are therefore more likely to get jobs than they were before. I can assure the member that there are a considerable number of people with Dogwood Certificates, which give them the opportunity to go ahead with apprenticeship training and to get the kind of trade qualifications that they need. I assure the member over there that the Elk Valley people are looking to stay in the Elk Valley to create those jobs, and that doesn't happen overnight. So I would say that all of the efforts and all of the resources that were put into the Elk Valley are making a difference, and they're making a positive difference.
The Speaker: The member has a supplemental question.
D. Jarvis: Well, they all have their licences, but unfortunately, they have nowhere to go. They can't all be cab drivers.
Union pension funds, after being underfunded and drained by the lawyers, are down almost 50 percent. The judge who was supposed to make a ruling on this issue has taken an extended vacation before making his decision. Meanwhile, their UI is running out, and the banks are moving in. What has the Mines minister done to help the mineworkers in her own riding, other than to sit back and watch?
Hon. A. Edwards: I find it amazing that the member doesn't know that this government does not direct the courts as to what to do in private sector initiatives. I will tell the member, however, that I have met with former members of the Mine Workers who are affected by the situation as far as their pensions and severance and holiday pay are concerned. We will be doing what we can, but it is very limited. Again I remind the member that it is under the supervision of the court.
[ Page 12611 ]
COMMUNITY INFRASTRUCTURE GRANTS
L. Hanson: I have a question to the Minister of Municipal Affairs. Earlier this year this government cancelled the revenue-sharing program, which assisted municipalities and their infrastructure. It was replaced by the community infrastructure grants. The government seems to be reticent in announcing approval of these programs. There is some concern -- particularly in the northern parts of British Columbia and in the interior -- that because of the time constraints on completion of the program, they may not be able to do them within this time frame. What is the minister doing to alleviate those concerns?
Hon. D. Marzari: The $675 million that will be invested in infrastructure in this province is well on track. We are now waiting for final federal approval of the first list, which will spend a good, solid portion of those dollars.
I have to remind the member, too, that this province is not lax in its commitment to infrastructure. The conditional grants for sewer and water will continue unabated, as they have in the past number of years. Infrastructure money is not being replaced.... It is there, and it is solid, and the dollars are available for all of British Columbia.
The Speaker: Supplemental, hon. member.
L. Hanson: After listening to the minister's answer, I'd like to give her a shovel and tell her to go up to Dawson Creek and try to put in a waterline in mid-December or January. In any case, I wasn't questioning the amount of the grants; I was asking the minister if she could give assurance to the municipalities that they will know in time to complete their projects before the weather stops them.
Hon. D. Marzari: I will give that commitment. The Minister of Employment and Investment and I are working very closely together to ensure that these grants flow to the communities that need them most. Those are the northern communities where freeze-up comes early. I can guarantee the member that the federal-provincial-municipal infrastructure program will be on time and on budget, and it will produce for our communities.
NANAIMO COMMONWEALTH HOLDING SOCIETY
K. Jones: On Thursday special prosecutor Ace Henderson revealed that $48,000 in management fees is owed to former NDP minister Dave Stupich. As Premier and leader of the New Democratic Party, will the Premier today call on Dave Stupich to renounce all claims on the money apparently owed him, and demand that this money be turned over to Nanaimo charities, where it rightfully belongs?
Interjections.
The Speaker: Hon. members, the bell terminates question period. The hon. member's question was not in order. The hon. member knows that it does not fall under the responsibility of the minister.
L. Hanson: I ask leave to table a petition.
Leave granted.
L. Hanson: It's a petition by fishermen -- independent businessmen -- and their crew members who do not want to be arbitrarily defined as employers and employees. They're asking the government not to put Bill 43 forward for the Lieutenant-Governor's signature.
Hon. G. Clark: First of all, I'd like to announce that the Public Accounts Committee is meeting tomorrow at 8 a.m. I'm sure that may be different from what's published here.
F. Gingell: As always.
Hon. G. Clark: "As always," the member says, and after that question period, I hope we're here for a few more weeks, and they can meet many more times. [Applause.] I didn't get much applause from our side on that.
I call committee stage on Bill 40.
[2:30]
FOREST PRACTICES CODE OF BRITISH COLUMBIA ACT
The House in committee on Bill 40; M. Farnworth in the chair.
The Chair: The preamble is dealt with at the end of the bill.
On section 1.
Hon. A. Petter: I move the amendment to section 1, which is in the possession of the Clerk.
[SECTION 1, in the proposed subsection (1)
(a) by deleting the definition of "designated energy, mines and petroleum resources official" and substituting the following definition: "designated energy, mines and petroleum resources official" means a person employed in the Ministry of Energy, Mines and Petroleum Resources who is designated by name or title to be a designated energy, mines and petroleum resources official by the minister of that ministry for the purpose of a provision of this Act or the regulations that is set out in the designation; ,
(b) by deleting the definition of "designated environment official" and substituting the following definition: "designated environment official" means a person employed in the Ministry of Environment, Lands and Parks who is designated by name or title to be a designated environment official by the minister of that ministry for the purpose of a provision of this Act or the regulations that is set out in the designation; ,
(c) by deleting the definition of "designated forest official" and substituting the following definition: "designated forest official" means a person employed in the Ministry of Forests who is designated by name or title to be a designated forest official by the minister of that ministry for the purpose of a provision of this Act or the regulations that is set out in the designation; ,
(d) in the definition of "forest practice" by deleting paragraph (b)(i)(B) and substituting the following:
(B) for a commercial purpose under this Act or the regulations, or, and[ Page 12612 ]
(e) by deleting the definition of "senior official" and substituting the following definition:
"senior official" means
(a) a district manager or regional manager,
(b) a person employed in a senior position in the Ministry of Forests, who is designated by name or title to be a senior official for the purposes of this Act by the minister of that ministry,
(c) a person employed in a senior position in the Ministry of Environment, Lands and Parks, who is designated by name or title to be a senior official for the purposes of this Act by the minister of that ministry, and
(d) a person employed in a senior position in the Ministry of Energy, Mines and Petroleum Resources, who is designated by name or title to be a senior official for the purposes of this Act by the minister of that ministry; .]
The Chair: Just for the information of the House, the amendments to section 1 are considerable in number. There's (a), (b), (c), (d) and (e), over two pages. We will take all the amendments together, and you can talk about all of them at the same time, just to make things easier for the House.
G. Wilson: On a point of order, I realize that preambles are often done at the end of bills, however the preamble to this act is very much a directive of the clauses that will be debated and passed in this act. It would be in the interests of getting this through in a relatively speedy way if we were to debate, discuss and pass the preamble -- or not pass the preamble, as the case may be -- at the beginning, rather than at the end. I'd like a ruling from the Chair on that.
The Chair: In large part, the preamble is dependent on the content of the bill. That is why we will be dealing with the preamble at the end of the bill. That is the ruling of the Chair.
On the amendment.
W. Hurd: I would welcome an explanation from the minister, since I haven't seen the amendments before the committee today. Could he provide a rationale for the changes with respect to "designated energy, mines and petroleum resources official" and "designated environment official"? Can he advise the committee whether these changes are housekeeping in nature or what the rationale might be for introducing such an array of amendments in what appears to be a routine definition section of the bill?
Hon. A. Petter: I'd be happy to try to clarify. The amendments are certainly what I would term house-keeping. They are designed to make it clear that the designation of officials can take place section by section, rather than designation of officials for the purposes of the entire act. That enables officials to be designated for specific purposes pertaining to particular sections of the act, rather than designating an official for the act as a whole. In that way, it helps clarify and specify the designation process.
W. Hurd: I understand the environment and forestry official, but could the minister briefly describe for the committee what he feels the role might be of an energy, mines and petroleum resources official? I am trying to envisage a scenario where that particular ministry would have any jurisdiction over this particular act or any aspect of forestry in the province.
Hon. A. Petter: Officials of the Ministry of Energy, Mines and Petroleum Resources have some responsibilities -- as we will see when we get to the act -- with respect to special use permits for resource development roads pertaining to mining. As we see when we get to those sections of the act, there is a role for officials of that ministry in respect of the approval of roads for mining development.
J. Tyabji: On the amendments, I note that the designated officials for the three separate ministries has changed. In the act, as it's written right now, it talks about designation by the minister of that ministry. That's being removed by the amendment. Who is doing the designating? Could the Minister of Environment, for example, make designations for the relevant person in the other two ministries?
Hon. A. Petter: If the member looks a little more closely at the wording, she will find the words "by the minister of that ministry" in each of the three sections.
Amendment approved.
On section 1 as amended.
G. Wilson: There are a number of definitions we would like to some clarification on. The first one -- and maybe we can take them in order -- is "backlog area," which "means an area (a) from which the timber was harvested, damaged or destroyed before October 1, 1987, and (b) that in the district manager's opinion is insufficiently stocked with healthy well spaced trees of a commercially acceptable species." I wonder if the minister might just tell us a little bit about the reason for the date of October 1, 1987. Second, why is latitude given with respect to the district manager's opinion, and why wouldn't it run more consistently with filed and accepted cutting plans or permits?
Hon. A. Petter: October 1, 1987, is the date that the then Bill 70 became effective, which imposed an obligation on licence holders with respect to reforestation responsibilities. The determination on backlog areas obviously requires some assessment by someone with expertise as to whether or not an area has been adequately restocked. As is elsewhere the case in this act, the district manager is the most senior official within the local areas to make that assessment and therefore is granted that responsibility under the definition section of the act.
G. Wilson: I don't take issue with the fact that you want to have somebody who has some expertise, and we'll be raising that as we go through this bill with respect to the designation of people who will be empowered in this bill to make decisions on behalf of the government and, in some instances, in local regions. It goes on to suggest that the district manager should have an opinion that it's "insufficiently stocked with healthy well spaced trees." There is a wide variety of regions, and a wide variety of replanting has taken place in the province. I know my own best region best, and on the coast, it's generally a very fast-growing and healthy forest. But there are some
[ Page 12613 ]
areas in which restocking has clearly not gone as well as in others. Can the minister tell us, then, whether the matter of the backlog area is going to be determined largely by virtue of areas within the region, or is it going to be done on a case-by-case basis, by licence?
Hon. A. Petter: The process of determining backlog areas, I understand, is done on a site-specific basis throughout the provincial forest in each district. I understand that a set of correlated stocking standard guidelines is presently in use. Those standards assist the district manager in making the determination and in making the public aware of what the appropriate stocking standards are for each area.
G. Wilson: It's good to know that there will be a consistent set of standards.
The next item is with respect to the term "corduroyed trail." I profess some ignorance here. I phoned around to a number of people in the industry, and they also didn't know. It almost looks as though you're putting in a dress code for particular areas. Could you please tell us what's meant by that?
Hon. A. Petter: I'm told that it's a trail built in an area where, to get access, it's necessary to put down wood in order to go over what would otherwise be sensitive soils. Hence the term "corduroyed."
G. Wilson: As a matter of fact, I think I've even been across a few, now that you have explained what it is. I just didn't know what they were called.
In the definition of a designated forest official, there is no reference to the qualifications of that individual. I note that in the Forest Act, as it's now constituted, we are defining the people who have powers as officers, not officials. That is perhaps a subtle change. Maybe it's not significant, and you can tell us if that's not so. Secondly, it says that it's "a person who is designated by name or title by the deputy minister or a person authorized in writing by the deputy minister to exercise functions under the provisions of this Act." I wonder why it would not specifically set out somebody who has qualifications with respect to some form of post-secondary training in forestry.
I notice that all through the act, three ministries will be empowered to act on this: Forests; Environment; and Energy, Mines and Petroleum Resources. The concern we have here is that you may have a designated forest official who may be designated outside the line ministry and therefore, in the eyes of people in industry or in the community, who are dependent on these decisions, may not have the kind of specialized qualifications that would be needed. If the minister might point to somewhere in this bill to give us assurance that that won't occur, we'd be grateful.
Hon. A. Petter: First, just to clarify that, if the member takes a look at the amendment we just passed, the designation is now by the minister. Secondly, different officials may be designated with respect to different tasks, obviously. In the case of a protection-related task, a protection officer might be dealing with the particular specialties and requirements that go along with fire prevention, etc.
Throughout the Ministry of Forests and other ministries, as a matter of good administrative practice, officials are designated to certain roles because of their expertise, and they would again be designated to the respective tasks under this act. I don't think one can, in legislation, specify in detail what each and every official for each and every task would be required to have by way of expertise or title. But you can certainly have my assurance, simply as a matter of good administration, that the designated official will be one who has the appropriate expertise and status to carry out the function or determination required in the appropriate part of the statute that's at issue.
G. Wilson: Notwithstanding that the minister of the said ministry is going to be making the designation, this definition still does not preclude a designated forest official being designated out of the Ministry of Environment, does it?
Hon. A. Petter: Again, refer to the amended version in each section: "'designated forest official' means a person employed in the Ministry of Forests..."; "'designated environmental official' means a person employed in the Ministry of Environment, Lands and Parks...." So I think it does preclude reaching outside the ministry and the respective roles within that ministry.
G. Wilson: I would acknowledge, then, looking at the amendments that have just been provided us, that that does take care of that concern. I just had one other question, and it's with respect to the definition of a "dispersed disturbance." I don't see that defined in any other act, and I wonder if the minister might say what it is, given that the definition will be by regulation.
[2:45]
Hon. A. Petter: The member will be relieved to know that it is not a parliamentary term, although it might strike one as such. It's a term referring to the amount of disturbance that is permitted within the overall area to be reforested. Then there are certain consequences that flow in terms of having to reclaim or restore that disturbance. It's a term referring to the amount of disturbance within the overall area that's being designated for forestry activity.
G. Wilson: I'm assuming that the minister means the amount of disturbance to land -- that we're not dealing with visual impact and those kinds of issues; this is not an aesthetic kind of definition. We're talking about a site-specific disturbance with respect to soil and other kinds of general provisions, I would gather.
Hon. A. Petter: Yes.
D. Mitchell: One of the challenges in dealing with the preamble last is that there are certain terms and expressions used in the preamble that we can't deal with under the definitions section. We'll have to go back to those when we get to the preamble, I suppose.
Under the definition offered for "forest resources," I'd like to ask the minister a question. The definition of forest resources refers to "values associated with forests and range." I wonder whether the minister could help us understand what is contemplated by the term "values" here, because nowhere is it defined in the bill. Forest values obviously is an important concept here, but it can be interpreted in different ways by different people in the industry.
[ Page 12614 ]
Hon. A. Petter: Clearly, as we move toward a forest practice code that recognizes the many different values that people place upon the forest, it's important to recognize that those values form part of the resource. The example that I would offer -- the most obvious, I suppose -- is visual values. There are certain areas of the province in which the forest resource is important because of its visual or aesthetic value. Clearly, the Inside Passage would be an example of that, as well as areas visible from major arterial highways, particularly in heavily travelled tourist areas. Within the umbrella of this code, requirements will be put in place to protect some of those values, which form a component of the resource. This definition simply recognizes that those values are related to and form part of the forest resource.
W. Hurd: I have just a few questions with respect to the definition section. In the definition of forest resources, this is the first time the term "biological diversity" appears in our discussion, and I'm sure it will appear again. I think it's important for me to invite the minister to comment on exactly what we're dealing with in terms of a definition for biological diversity. The minister will know that that term enjoys quite a bit of controversy in professional forestry circles and in botanical circles, and I think it's important at this point to get into the pages of Hansard a concise definition of exactly what the ministry means when it alludes to or refers to biological diversity.
Hon. A. Petter: I think members are aware that much of the research and studies that have been done on forest economies -- and ecosystems, for that matter -- in the past decade or so have noted that the strength and health of a forest depends upon the recognition and continuance of the diversity of species and plant life that exists within that forest. A forest's strength and health depends upon the very symbiotic interrelationship among diverse plant and animal life that exists. This recognizes that to have a healthy forest in the future requires recognition of and respect for that diversity. Obviously, in some cases that diversity will necessarily be compromised, but the recognition that it is part of the resource and should be protected along with the resource is part of what is being recognized in this definition.
D. Mitchell: While we're dealing with the definition section of the Forest Practices Code, there is some ambiguity in the definitions, as I think the member for Surrey-White Rock was pointing out. I have a question of clarification about the definition of higher-level plan. This might be a technical concept, but I think it's important for those working in the working forest to know the difference between a higher-level plan and a lower-level plan. I also think it's very reasonable to expect that they should be consistent with each other.
The problem with that part of the bill seems to be that the whole principle for higher-level plans seems to reflect an increased uncertainty for the public as well as for licensees, because individual members of the cabinet, or even government employees, could be given virtually unilateral power usurping lower-level planning processes and approvals. The definition says that a higher-level plan can be declared such by the ministers or the Lieutenant-Governor-in-Council. Why is this necessary rather than clarifying the whole relationship between higher-level and lower-level plans?
Hon. A. Petter: It's sort of hard to clarify a relationship between something that hasn't existed heretofore. In the case of higher-level plans, we haven't had a statutory recognition of higher-level planning. Therefore the values that would normally be represented in higher-level plans have existed in a very informal way -- and perhaps in an inconsistent way -- in the decisions that are made day to day on the more site-specific operational plan. That creates instability.
This section recognizes -- and when we get to the part dealing with higher-level plans, it will be further laid out -- that it's necessary and desirable for stability and for certainty to have a formalized higher-level planning process in which decisions that are made about land use at a regional level through LRMP processes can be given some legislative recognition. For example, as the result of a land use decision flowing from an LRMP process or a regional land use planning process in which the decision is made to designate a component of the land base for commercial or intensive-use forestry, that decision is not made informally but can be formally recognized and given legislative status in a way that the industry and communities and others can depend upon, rather than having it implemented informally through the day-to-day discretionary powers that take place in the field. So I would argue with the member's supposition that this creates instability; indeed, it does exactly the opposite. It recognizes and formalizes the existence of higher-level plans, and it gives much greater certainty to everyone about what those plans contain and how they are to be promulgated.
D. Mitchell: I don't want to belabour the point -- and as the minister indicates, we can deal with it later on -- but just for clarification, we're dealing with the definition for higher-level plans offered in the bill. Would the minister not agree that the definition here gives almost unlimited authority to cabinet or individual government employees to declare anything a higher-level plan, and that that could thereby unilaterally usurp the lower-level planning process and approvals that exist today?
Hon. A. Petter: It gives cabinet the power to designate what is a higher-level plan, and I think that's consistent with the notion of cabinet responsibility and establishing some level of certainty. It does not give that authority to lower-level officials. For that reason, it does clearly speak to the accountability of cabinet, which in our parliamentary system is what we should aspire to. It also speaks to cabinet's responsibility to articulate what higher-level plans are so that everyone -- officials and industry and communities and workers -- can proceed with certainty and knowledge as to what those planning requirements are.
W. Hurd: I was scribbling furiously as the minister was announcing his finding on biological diversity. It occurs to me that the definition offered is perhaps one of the reasons that there's such confusion about the issue. Most people assume it is an old-growth stand, which is an ecological unit, but in fact there is greater biological diversity in a clearcut in the interior. It's obvious that this is a term that we're going to struggle with throughout the bill. I certainly intend to raise it again when we get into the preamble section, because it is a term that does carry a certain amount of controversy in environmental and botanical circles, as I mentioned. I pledge to reread
[ Page 12615 ]
Hansard and hang onto every syllable the minister offered in order to discern whether he has a better definition than any I've read so far.
I have just one other question with respect to forest practices as defined in this bill. I notice that there's no specific mention made of campsites, which are maintained by both the ministry and some licensees, although the term "recreation site" does appear later on in the definition section. Can the minister clarify why mention of a maintained campsite for public use would not be defined under forest practices in terms of this act, which then goes on to talk about any other activity on Crown land?
Hon. A. Petter: The reason is that campsites are not part of forest practices undertaken by licensees. Therefore, they are covered off as part of the recreation sites. They do not flow as part of the forest practice obligations of licensees and therefore are not defined as forest practice.
C. Serwa: Going back to the point that the opposition critic from Surrey-White Rock made with respect to his concerns about the definition of biological diversity, in his explanation the minister waxed eloquent on healthy forests and biological diversity being a necessary component of healthy forests. Perhaps the minister would indicate to me what his definition of a healthy forest is, given that he had used the term.
Hon. A. Petter: I will leave it to the experts to get to that level of definition.
I would point out that because we agree upon a term doesn't mean we agree upon its application. We agree that endangered species must be protected, but to some extent we leave it to expert opinion as to which is endangered. Obviously there are disagreements as to what form of biological diversity should be maintained. That's understandable and will be part of the ongoing discussion that takes place.
This act recognizes that biological diversity is a value of the forest that must be accounted for in forest planning and is a component of what constitutes a healthy forest. The nature of that diversity, how it contributes to a healthy forest and what kinds of forest types would be associated with what kind of diversity are questions that are best left, I would suggest, to officials with expertise to develop over time.
C. Serwa: The most commonly used definition of a healthy forest refers to the stand of timber in the forest. My concern is that the implication was that a healthy stand of timber really requires biological diversity, and it does not.
In New Zealand, for example, there is not the biological diversity that exists in this country. They have very healthy forest stands of their own mature forests and the hand-planted stands of radiata pine. The biological diversity is not there. That is the nature of the situation. The biological diversity that the minister refers to is non-existent in the monocultures in the Scandinavian countries as well. There they have very healthy forest stands and good forest production. I just wanted to make it absolutely clear that they are not necessarily hand in hand: biological diversity is an element in the forest itself.
Hon. A. Petter: The key underlying value that I hope everyone ascribes to is that of sustainability. It's obviously true in different forest types and in different kinds of forestry that there will be greater attention paid to maintaining existing biological diversity versus a different kind of biological diversity or biological diversity at all.
In Sweden, for example, looking to the longer term, I understand that there is a growing concern about monocultures and long-term forest health. There is a considerable body of work suggesting that for long-term sustainability, biological diversity is a very important value. That doesn't mean there are not forests that have undergone regeneration that have had less diversity or that have undergone significant change. I wouldn't disagree with that, but I also would draw the member's attention to the fact that much of the concern around the sustainability of forests has focused on the need to maintain diversity in order to promote regeneration that will withstand the test of time.
[3:00]
G. Wilson: I wonder if we could move to the definition section and recreation. There does not appear on the surface to be much distinction between a "recreation feature" and a "recreation resource." It's quite clear that "site" and "trail" are defined within the Forest Act. They are things that are specific and tangible. You can go out and actually see them on-site. But a "recreation feature," meaning a "biological, physical, cultural or historic feature that has recreational significance..." -- and then it says -- "...or value...." It doesn't even have to have any value; it can be significant to somebody for some reason. Then it says that a recreation resource means "(a) a recreation feature" -- which is defined above -- or "(b) a scenic or wilderness feature or setting that has recreational significance or value...." This is pretty broadly defined, and I don't know that its current terminology is going to be very helpful unless the minister is prepared to tell us what the differences are and why that couldn't simply be carried forward with respect to a reference to the Forest Act and the existing recreation site and trail definitions.
Hon. A. Petter: I think the intention here is to have a broader notion of what a recreation resource is so that it means all the aspects of the resource that lend themselves to recreation. A recreation feature, then, would speak to a particular physical or historic feature that has a particular significance. A waterfall, for example, or a particular aboriginal heritage site, might be such a feature. That feature would be a recreation resource, but the resource is a much broader notion that talks about the forest in all the ways that it supports recreational activity and use.
G. Wilson: That doesn't provide a lot of comfort to those who are looking for a well-defined and consistent direction in this code to be provided to senior ministry people and people who will be making decisions with respect to the forest practices and plans that are put in place. Quite clearly, what may appear to be of recreational significance in some areas will vary widely among people who have various different aesthetic and perhaps cultural backgrounds. I think that having those two definitions, given the extent to which those definitions will be used in the final analysis for a review of plans, causes concern among, ironically enough, those who have been lobbying us -- and obviously we get lobbies as well as the government does....
Interjection.
[ Page 12616 ]
G. Wilson: The Minister of Employment and Investment is asking if we do. Yes, indeed we do, even on such things as ferries and highways, strange as it may be -- especially on the Gibsons bypass, which we expect to see announced now that North Vancouver has been given its little lollipop. So we'd better see that.
Going back to this particular section, the wide latitude that's provided here does not seem to give comfort either to recreationalists, who say that it doesn't provide a clear definition as to what can be defended, or to people in the industry, who say that it gives too wide a definition. I think the minister needs to explain a bit about why it's set out the way that it is.
Hon. A. Petter: First, the definition certainly has similarities to the current definition in the Forest Act. I would just say that when you're dealing with a definitions section, you're creating a lexicon. You're creating terms that will hopefully provide some measure of meaning and definition, but clearly, the definition section is not going to set forth the policy under which recreation, for example, is carried out. For example, extensive work has been done within the recreation branch of my ministry on an inventory of recreational resources. There is a policy with respect to those resources, and it would be unfair, I suggest, to expect a definition section that is trying to define a lexicon to establish a comprehensive or detailed policy. Clearly that's not what this section is intended to do, and therefore it couldn't satisfy anyone who expects it to deliver in that way.
G. Wilson: Nevertheless, clearly this is a guideline by which we have to at least try to figure out the intent of the bill as it defines what is being put in place.
I wonder if I could just move to the amendments to the definition of "senior official." I understand that by adding those two additional sections, the amendments simply bring into reference, once again, the fact that the senior official must be appointed by the minister of that ministry and will only will be designated to act on those matters that would ordinarily fall within the terms of reference of that ministry. Could the minister confirm that that is correct?
Hon. A. Petter: That is correct.
W. Hurd: I have just a couple of brief questions with respect to the definitions "cutblock" and "net area to be reforested." Those really quite interesting definitions seem to imply a commitment by the Crown toward some sort of area-based security. I knew that couldn't be it, but my heart did soar when I read it. It seemed to indicate a commitment there that the Crown would recognize a cutblock as having an area of land attached to it, and indeed that a net area to be reforested meant a portion of an area under a silvicultural prescription. Having spent some time in estimates trying to pin the minister down on that specific issue of area-based security, I wonder if he can tell us whether these two terms, as they are defined in the Forest Practices Code, parallel in any way the actual Forest Act when it comes to dealing with these two particular definitions? Or are they brand-new for purposes of this code?
Hon. A. Petter: My understanding -- and I have tried to verify it -- is that in the Forest Act there is no definition of either of those two terms. So it could hardly be an appropriation of those definitions, because they don't exist. It is simply specifying here that when you get to the point of having an area to be cut, then obviously that area to be cut will form an area.
This is not suggesting in any way a shift towards area-based tenures where there are volume-based tenures, but simply recognizes that once you get to the point in planning of designating a cutblock, then yes, that cutblock will take place within an area, and that net area to be reforested will be an area within that cut area.
W. Hurd: I notice under the definition of "net area to be reforested" that a specific exemption is made of "an area of rock, wetland or other area that in its natural state is incapable of growing a stand of trees that meets the stocking requirements specified in the prescription...." I'm struck by the fact that the Premier, in making his land use announcement for Vancouver Island, advised that 81 percent of the Island would be available for timber harvesting.
I just wonder how that assessment of the resource availability on Vancouver Island meshes with the fact that a considerable amount of it would in fact be rock, wetland and other area that in its natural state wouldn't be capable of growing trees. I wonder if the minister might be able to advise us how much of the 81 percent available for harvesting on Vancouver Island wouldn't even apply to the definition of "net area to be reforested" under this particular section? Does he have any information that he can share with the committee on that?
Hon. A. Petter: I will go this one step beyond the scope of this act to answer the member's question, but I think we should hesitate in going any more. About 80 percent of the forest land reserve proposed for Vancouver Island is productive forest land. To flip it around, of the productive forest land on Vancouver Island, more than 91 percent is in the proposed forest land reserve. Obviously, within any forested area there will components of the forest land base that are not suitable for restocking, just as there will be within protected areas. There's no surprise in that.
W. Hurd: Just a couple of other additional clarifications on the definition section are required. I'm interested in the terms "recreation feature" and "recreation resource." As the minister knows, in a later section of the bill those particular definitions provide a district manager with considerable latitude when it comes to achieving a special designation of forest land and, in essence, taking it out of production. Can the minister just clarify whether these two terms, "recreation feature" and "recreation resource," will in any way apply to that future section with respect to the powers of the district manager in setting aside a special area, because of these two definitions in this definition section?
Hon. A. Petter: I'm not clear, from the way the member has framed the question, as to exactly which power he's referring to. He could be more specific. Or perhaps it would be best to wait until we get to that section, and he could ask us at that point. There are many powers throughout this act that give officials discretion, and I don't want to presume the wrong section. Perhaps it would be more appropriate to wait until we get to the section he has in mind.
[ Page 12617 ]
W. Hurd: "Recreation feature" specifically mentions a biological, physical, cultural or historic feature that has recreational significance or value. That definition would appear to empower a number of different ministry officials to take some specific action to protect a recreation feature. My question is a pretty brief, straightforward one. Is this the value, if I can use that term, that an official would use in order to make a special set-aside under future clauses of the bill? Obviously the definition has to be here for some specific purpose, and I wonder if the minister could clarify why these two definitions of "recreation feature" and "recreation resource" are put in at this time under the definition section, if in fact they are divorced from what we are going to be dealing with in the future. Or are they just a stand-alone definition of a recreation feature?
Hon. A. Petter: Recreation features and other values are accommodated throughout the entire planning process. It's not a separate set-aside; it's a matter of integrating into planning a recognition of recreation features -- which very often will not be incompatible with logging, for example.
About a month or so ago I visited an area in North Island that's used for recreation that was recently logged. Part of the logging was done in a way that was sensitive to the recreation values. If you look at the current Forest Act, I would point out that the definition is much the same. Recreation resource means any biological, physical, cultural, historic, scenic or wilderness feature that has recreational significance or value, or any recreational facility. There is not much here that's different from what we have under the current Forest Act.
W. Hurd: I have one additional question with respect to the definition of unfenced grazing land -- which refers specifically to private land, I assume -- that is in the vicinity of Crown land but which is part of a grazing management unit. When we are trying to get at the definitions here, the minister will be aware that considerable controversy exists with respect to how the code will apply to those private lands. This might not be the appropriate time to ask, but I'll ask anyway. I understand that private landowners will have the opportunity to correspond with the ministry with respect to how the code will apply to their lands. I wonder if this particular definition would be subject to the same type of consideration, where the government has taken special care, obviously, to define unfenced grazing land in the Forest Practices Code and to clearly indicate that adjacent private land will be included in the Range Act for purposes of this particular code and how it will apply to private land.
[3:15]
Hon. A. Petter: As I mentioned earlier in response to questions from the member for Powell River-Sunshine Coast, the definition sections are creating a lexicon. The definitions do not empower. When we get to sections that deal with powers with respect to grazing land, I would suggest that that would be the appropriate time to raise any concerns the member might have with respect to private land, drawing upon the definition that's provided to explain the section we will then be attending to.
D. Mitchell: I seek some clarification about the very end of the definition section. I hope the minister will agree that at the very end, following "wildlife," the final term defined, are sections (2), (3), (4) and (5). These are separate sections under the definitions section. The way the bill was printed it is not extremely clear. It looks like these are subsequent to the wildlife definition, but that's not the case. These are separate sections. Is that correct?
Hon. A. Petter: Separate subsections.
D. Mitchell: In that case, I would like to deal with a brief question about subsections (4) and (5), the last two subsections of the definitions section. Under these subsections, the government is essentially exempt from the Interpretation Act that binds the Crown to any government enactments. Also, the government is not bound by any penalties, fines or liabilities under the Forest Practices Code.
The reason this needs some explanation is that there is a concern that the forest resource managed by the Crown -- whether it be through the small business enterprise program or other Crown-owned and -managed resources -- is sometimes among the worst-managed timber in terms of values and practices. Yet this Forest Practices Code, Bill 40, seems to perpetuate a system whereby licensees are bound by the act, but the Crown isn't. Why would that be the case?
Hon. A. Petter: In fact, the opposite is true. Subsection (4) is designed to make it clear that the part of the Interpretation Act that would otherwise exempt the Crown does not apply; therefore the Crown is bound and affected by this act in its use and development of land. It does the exact opposite of what your concern is. It's there to make it clear that the Crown is bound.
Subsection (5) simply preserves the status quo that administrative fines and penalties do not apply to the Crown -- it would be the Crown paying itself, in a sense -- but that the Crown is bound by the act. The small business program, for example, must meet the requirements of the act, and that's what subsection (4) is designed to do. It makes it clear that the Crown is bound by the requirements of the code.
R. Neufeld: I had a question on that section too, so I will deal with subsection (5) first. In the small business program, government officials set out all the logging plans and everything that's going to take place. If you look at any of those sections, you will find that the people who are responsible for a private company can be fined. Why would we not do the same thing to our people? We're setting two totally different things apart. I know there's no sense in fining the government and just paying yourself, but I would think that people who are responsible for the small business program should be just as responsible as someone who's working for a private company.
Hon. A. Petter: As I said, the situation in the past in terms of forest management was that while the Crown is bound, it would be meaningless to suggest that the Crown pay itself a fine. Certainly government officials are expected, through the course of their employment, to observe the requirements of the act. Obviously, if they were to not do so, there would be consequences. What this does is simply recognize and preserve the status quo in general, but it makes it clear that the Crown is bound by the act.
[ Page 12618 ]
R. Neufeld: I appreciate what the minister is saying, but I don't agree with him that you're just paying a fine to yourself. I'm saying that the people who are responsible for setting out the logging plans and all the plans associated with the small business program should be just as responsible as anyone else in the industry who's setting out the same plans. The minister is saying that as long as you work for government, you're exempt, and there could be some repercussions. It would be interesting to hear what kinds of repercussions there could be against someone. That would be a little different. We can argue those sections as we get to them -- sections 117, 119 and 147. Maybe it will make a little more sense then, rather than dealing with it now.
We have definitions of soil disturbance, bladed trail, excavated trail and dispersed disturbance, and it goes on and on. I'm quite familiar with corduroyed trail; there's an awful lot of it in the north, not just in my constituency. One description that should be in here -- and I haven't been able to find it in either the draft regulations or the standards; maybe I missed it -- is something that is an integral part of logging in the north: ice bridges. What kinds of standards are we going to have on ice bridges crossing major rivers or streams? They're common. I know they're not common on the Island, and I hope this Forest Practices Code is going to apply to more than just the Island. And then there's ice roads. I can't find either of those mentioned anywhere, yet they are significant parts of the logging industry. Maybe the minister could explain to me why we don't mention them anywhere in the Forest Practices Code.
Hon. A. Petter: I frankly don't know the answer, and I'd be happy to follow up with staff and find out what provision is intended with respect to ice roads and ice bridges, and where that would be factored in. I'm not aware of the intention of the ministry officials who have knowledge in that area. Rather than pretend that I do, I'll get back to the member and let him know what's being intended.
R. Neufeld: Just for the minister's information while we're dealing with that: I raised questions about ice bridges with both the Ministers of Energy and Forests a year or so ago. In the past there were different practices and different rules for whether you were in Energy, Mines and Petroleum Resources, or in Forests. I know it's of significant importance, probably more so around the Fort Nelson area than anyplace, because ice bridges are a large part of it. I would really like to see us deal with it so those people know what they're facing and what they should be doing, because it's not going to be long before they're doing this.
C. Serwa: I'm not certain that it belongs in this particular section, but standing on the order paper is an amendment under my name. The reason for the amendment is that the industry has expressed concern that nowhere in the code is there any reference to maintaining commercial timber supply as a goal of government. Resource-dependent communities are very concerned about that as well. There is a great deal of uncertainty in the province. There is the reality of a timber shortfall, or falldown.
The Chair: Hon. member, before I let you continue, could you advise the Chair whether you are talking about section 1 or section 1.1.
C. Serwa: Section 1.
The Chair: Thank you.
C. Serwa: There is concern about that. There are concerns, as I have indicated, with respect to native land claims. This is the amendment that I have put forward:
[SECTION 1, by adding the following subsection: (6) The objects of this Code are: (a) to maximize long-term employment and employment income to British Columbians from our forests; and, (b) to enhance the stability of community life in the forested regions of the province. It is recognized that sustaining timber supply levels for commercial harvest is a major consideration in meeting these objects.]
Nowhere in the code, apparently, does it emphasize this particular aspect. It seems appropriate, as early as possible in the Forest Practices Code, to enunciate that as one of the prime goals of the whole exercise.
The Chair: Thank you, hon. member. The Chair has considered your amendment. Unfortunately, it is out of order, as it contravenes paragraph 698 of Beauchesne, in particular subsection (1). This particular section we're dealing with is a definitions section, and the scope of your amendment is to add objectives, which is beyond the scope of the section. Therefore, unfortunately, it's out of order.
W. Hurd: I have one last comment with respect to subsection (5), as alluded to earlier, which specifically exempts the government from the most onerous penalties under the Forest Practices Code. I find it ironic that the ministry has talked at length about deterrence -- the $1 million fines and the court action, which offers the government at least some sort of club to use against licensees.
But again, with respect to subsection (5), I would welcome a clarification. In my interpretation, it basically exempts the government from the more serious penalties under the code. I wonder whether that implies that the ministry will be stepping up the number of audits on land managed under the small business forest enterprise program. As we've alluded to in the chamber before, the largest portion of the harvest in the province is managed by the minister under that particular program. Clearly, if the club that appears for licensees elsewhere in this act isn't going to be used, I'd settle for an assurance from the minister that more stringent auditing is going to have to be done. One would assume that would be the least the Crown could commit to, in light of the fact that the definitions section is a rather sweeping section that does apply to a significant portion of the annual allowable harvest in British Columbia.
Hon. A. Petter: Clearly the member must be aware that the position of ministry staff is very different from that of a licence holder -- in terms of the benefits, for example. Ministry staff cannot profit in the same way that a licence holder can. The incentives and disincentives are very different.
But I think the member makes a good point when he points out that for the first time, under this code, an
[ Page 12619 ]
independent agency -- the Forest Practices Board -- will be initiating audits. Those audits certainly will include, to whatever extent the board determines desirable, the small business program. I expect that would mean that the small business program will come under at least as great scrutiny as other licensees do. I should also point out that increased staff is being allocated for the small business program, as we discussed in estimates, in order to ensure that the resources are there. Of course, internal government reports on the performance of the small business program are done in-house by the ministry itself and can be made available to the opposition member and the public.
So the incentives and disincentives are necessarily somewhat different. Under this code, as we'll see when we get to the relevant sections, there is more accountability and scrutiny for the conduct of government officials than has ever taken place in the past. And, I'm happy to say, the resources are there to ensure that government officials will be able to perform the job they have desired to perform for many years.
Section 1 as amended approved.
On section 2.
C. Serwa: Hon. Chair, I have an amendment standing under my name on the order paper, to create a subsection (1.1). The purpose of this amendment is that.... It is unclear how the code will be read in conjunction with the Forest Act. This amendment guarantees that it will not be used indirectly to deprive anyone of rights to compensation they currently enjoy under the Forest Act. The amendment proposed by myself is:
[SECTION 1.1, by adding the following section:
Compensation 1.1 Nothing in this Act shall be construed so as to remove or reduce the government's obligation to pay compensation for loss of timber or cutting rights to a landowner or to the holder of a licence or other tenure under the Forest Act.]
Hon. A. Petter: The issue of compensation is dealt with elsewhere in this act. I suggest that if the addition to a section is beyond the scope of the section, then this inclusion of a wholly new section is certainly beyond the scope of a section that doesn't currently exist and should more appropriately be dealt with when we reach the issue of compensation later in the act.
The Chair: Hon. member, if the amendment is dealt with later in the act -- which it is -- then your amendment is out of order.
[3:30]
C. Serwa: Then probably I will bring up this amendment again under the later portion of the act. I was not familiar with that, so that's what I will do.
The Chair: That would be appropriate, hon. member.
W. Hurd: With respect to section 2(1), I suppose I can now try and engage the minister in a discussion about the decision that the government has made with respect to private land and the Forest Practices Code. It's important, for the record, for the minister to clarify exactly what latitude is being offered to private landowners with respect to the implementation of the code.
It's my understanding that before the regulations come into force of law, the ministry is soliciting opinions and advice from private landowners as to how they feel the code should apply to their lands. Is that a correct assessment of the public policy initiative the government has undertaken with respect to this section? Perhaps the minister could just clarify that, because the only reference made -- about the commitment of the government to allow for a period of adjustment and for the solicitation of opinions from private landowners with respect to this section and others in the Forest Practices Code -- has been in the media and at the press conferences.
Hon. A. Petter: I want to distinguish two issues; one is dealt with in this section and one is dealt with elsewhere in the act. This section deals with private land that is contained within a tree farm licence or a woodlot licence area. It does not deal with the larger issue of private land or, for example, privately managed forest land, which is dealt with later in this act and also in other legislation that's before the House.
What is provided for in this section is clarification with respect to the obligation of tree farm licence holders and woodlot licence holders that the licence requirements they undertake apply with respect to the private land as well as to the Crown land within their licences. My understanding is that that has been the case through current licence documents, and this section recognizes it as such.
W. Hurd: I'm somewhat reassured by that explanation, but I am still troubled by the reference to forage production and grazing by livestock and wildlife. Is the reference here only to Crown land, or are we again dealing with private land?
As I alluded to earlier, it did show up in the definitions section, when we dealt with the definition of unfenced grazing land. Reference was made then to a component of private land. In section 2(1)(b), which refers to forage production and grazing, can the minister advise us whether there is a component of private land to be managed as well? Or is the only reference to private land in this section to that which exists in conjunction with a tree farm licence or woodlot licence?
Hon. A. Petter: The only case in which private land might be affected by (1)(b) would be in the unlikely event that some private grazing land was contained within a tree farm licence or a woodlot. It is not contemplated that that would have much application to private land. I don't know of much private land, if any, within tree farm licences or woodlot land -- private or otherwise -- that's devoted to grazing. The answer is that it is not expected to have any significant application to private land.
W. Hurd: This question, I suppose, would refer more to land holdings on Vancouver Island that are privately held and attached to tree farm licences. Can the minister advise us whether the application now for protecting recreation, scenery and wilderness values, and the other values mentioned, represents a change to the responsibilities that currently exist under the Forest Act for tree farm licences?
For example, I wasn't aware that in respect to private land attached to a tree farm licence, you now have to file a plan for the protection of recreation, scenery and wilderness values. Clearly we're encumbering the private
[ Page 12620 ]
land attached to a management unit on Vancouver Island particularly, where a number of licensees have rolled their private holdings into a management unit in conjunction with a tree farm licence. What I see in this section is quite a dramatic additional planning burden for the component of private land that is adjacent to a tree farm licence but that for planning purposes is one harvesting unit. I wonder if the minister could advise us whether I'm correct in the assumption that the private land component attached to a TFL will now be subject to quite a dramatic change of responsibilities with respect to studies that may have been done for the Crown land component. I assume they will now have to be done for.... Or is it the case that traditionally all the planning has been done for the entire unit, and this represents no significant additional burden?
Hon. A. Petter: The latter. The current practice is for planning to take place over the entire area -- both the private and public land components of the tree farm licence. Those requirements are contained within current contractual documents. The only change here is that it's now recognized in legislation. In terms of on-the-ground practices and planning requirements, there is no conceptual change planned for tree farms licences -- either the private or public land components. They'll continue to do so, and the legislation now recognizes that fact.
W. Hurd: Just to further clarify, then, did the recreation, scenery and wilderness requirements previously exist in the private land component? I'm aware that the entire planning function related to forest harvesting and cutblock planning, etc., would have applied, but this recreation, scenery and wilderness component for private land is somewhat unfamiliar to me. If the minister advises that that's been the requirement all along, I'd be happy with it.
Hon. A. Petter: I can advise you what I'm advised: the practice through current contract documents is that the planning incorporates recreational inventories, for example, on private land in the same way that it does on public land if that land is part of the tree farm licence.
Section 2 approved.
The Chair: On section 3, the member for Nelson-Creston.
C. Evans: Hon. Chair, I was standing as fast as I could while you asked for the vote. Would you like to declare that the vote was a little hasty, or would you like me to sit down and forget my question?
Interjections.
The Chair: On section 3, the member for West Vancouver-Garibaldi.
Interjections.
D. Mitchell: Hon. Chair, if the committee wishes to go back to section 2 for the member for Nelson-Creston, I'd be willing to defer to him. My question is on section 3.
The Chair: We have already passed section 2; we're on section 3.
D. Mitchell: I can only suggest to the member that he might want to be diligent, because I think the issues come up in the bill later on a number of different occasions.
Section 3 deals with resource management zones and objectives. I have a question for the minister dealing with section 3(2): "Before establishing a resource management zone, the chief forester must...." It states the responsibilities of the chief forester. The concern here -- and I think it has been expressed by a number of operators within the forest-product business and within the working forests of British Columbia -- is that there's no prescribed time limit on the chief forester for the required approvals -- of the Minister of Environment, in particular. In other words, under the definition of a resource management zone, a licensee could be subject to rules and regulations that are indefinite. Where a licensee or an operator has made a significant investment of time and money, should there not be a prescribed time limit for the approval of these resource management zones?
Hon. A. Petter: I have two points in response. The first is: if the member looks at some of the further amendments that I have put in the possession of the Clerk, he'll find that some of the sections are clarified; they make it clear that the requirement is to adhere to the plan at the time it was approved. To some extent I think those amendments speak to the concern he's raising. This will, in a sense, grandparent the plans that were approved according to the requirements at the time. So I would draw his attention to those further amendments, which we'll be getting to very shortly.
With that in mind, I move the amendment to section 3 that is in the possession of the Clerk.
[SECTION 3, by deleting the proposed subsection (2).]
On the amendment.
G. Wilson: When we have at least some semblance of accountability to the chief forester with respect to the approval of the Ministry of Environment, Lands and Parks within the proposed resource management zone that is being set up, I think the minister needs to explain why, at the eleventh hour, we would entertain an amendment that deletes that obligation. It was obligatory, because it said that the chief forester "must" obtain the approval of Environment, Lands and Parks. All through this act there are obligatory requirements with respect to local management of a series of different facets of logging practice and management of logging in particular areas that companies are going to have to abide by. What is strange in this amendment is that in the one section where there is some reasonable amount of accountability to the government, at the eleventh hour the minister entertains an amendment deleting it. If the minister could explain why that is so, we could move on.
Hon. A. Petter: First, I have been asked to clarify that the amendment in this case is to delete subsection (2). The reason is that if one looks at the section, the responsibility for establishing the resource management zones under subsection 3(1) lies with cabinet -- the Minister of Environment, Lands and Parks would be a member of cabinet, obviously, and would participate in that decision -- or, alternatively with three ministers, one of whom is that minister. Therefore it was deemed superfluous and unnecessary to have a separate specific requirement, given that the decision of cabinet would reflect the input and
[ Page 12621 ]
voice of that minister, beyond that already specified in subsection (1).
G. Wilson: Presumably the minister is suggesting that ministers in cabinet are going to be aware of every detail, or they are going to have their staff aware of every detail, before the establishment of these resource management zones. That is impractical; I don't think that is going to happen. My guess is that one lead ministry will be assigned; it will be the Ministry of Forests, or possibly Environment. Notwithstanding that, it goes on to say "if land within the proposed resource management zone is subject to an interest issued or granted under the Land Act" -- which has been removed. That is a significant amendment. It is more than just a question of three ministers getting together for coffee around a cabinet table saying: "Yeah, let's do it." Presumably, some data is provided here that gives some scientific support for, or removal of, approval in this instance. I don't think that the explanation from the minister is enough. It has to be more than just ministers getting together and deciding yea or nay on this question, particularly if there is already a governance under the Land Act which provides at least some comfort with respect to interest that may be issued.
[3:45]
Hon. A. Petter: Contrary to the member's suggestion, there is every expectation that all members of cabinet -- certainly the Ministers of Environment, Lands and Parks and the Minister of Forests -- will have a direct interest in decisions to designate resource management zones. The input of those ministries will be reflected in whatever decision is made, either by cabinet or by the three ministers -- the third minister being the Minister of Energy, Mines and Petroleum Resources. To say that there has to be further requirement does seem redundant, frankly.
If the cabinet system is to work, it must work as a collegial system with input from respective ministries. When cabinet has made a decision, if the system is working -- and without disclosing any secrets, in this government I can that say it is -- that decision involves full and substantive input from the respective ministers. It's a matter of not creating further hurdles for the chief forester that require the chief forester to go back and consult further, based on a decision which already involved consultation with that ministry and minister.
G. Wilson: With respect to the minister, as it is suggested here, "interest" is not a question of interest by a minister. As it is defined in the Land Act, interest is a reference to land that includes a right to or stake in the land. There's a legal definition of interest issued or granted under the Land Act, which is quite different from anything a minister may or may not have in a particular decision. We're not talking about whether he's interested in the decision. If this is a legal question that has been removed, I would argue that given that we're talking about resource management zones -- and let's not forget that we're talking about those issued under Crown land in a provincial forest and private land in a tree farm licence or woodlot licence.... Given that we're dealing with private land, an interest issued under the Land Act is a significant question. Now you're saying that you've removed the one area we had here where there would be reference back to the Ministry of Environment, Lands and Parks under the Land Act, so that there would be an opportunity for some kind of interaction on that decision, and you've given complete discretion to the government.
Hon. A. Petter: I have two points. I really think the member is making mountains out of molehills here. The process that will lead to resource management zone designation will involve input in regional planning processes, such as the kinds that take place around land and resource management plans or CORE-type plans, in which ministries -- certainly the Ministry of Environment and the Ministry of Forests -- are integrally involved and the public has a tremendous say. Secondly, interests may be affected under the Forest Act as well, but there's no separate requirement that the Minister of Forests be consulted subsequent to cabinet making its decision.
When cabinet makes its decision, I can assure the member that at least in a cabinet system that is working -- not in one that is perhaps out of control, and maybe the member's experience with the previous opposition caucus has given him a distorted view of how collegiality is supposed to work -- the various interests, be they under the Land Act, the Forest Act or whatever, will all be weighed and considered by cabinet -- in this case, following public input. Therefore the concern that there needs to be some subsequent consultation process with a particular minister is really redundant and puts an unnecessary obstacle in the way of the chief forester. Cabinet must and will take account of those interests when it makes its decision, and those interests will have been fully articulated and considered in the public processes that precede that decision.
G. Wilson: Just one more question on that. It really begs the question -- and we'll deal with it in section 4 -- about why you didn't take it out of section 4. In fact, the amendment to section 4 alters it in an even different manner. I don't accept that. I think the problem we're having with the minister here is that it's very much a matter of: "Trust us. We're going to have something like CORE." We know that wasn't controversial. Certainly on Vancouver Island, there was no controversy around CORE at all. Or they're saying that once the community has had its input, somehow the cabinet ministers are going to be able to evenly weigh all the potential interests, and we're going to now remove the reference which includes a right to or a stake in that land under the Land Act, to provide.... The minister is shaking his head. That's what "interest issued or granted" means under the Land Act. I've got the Land Act in front me, and the section is clear. So you're removing that reference and saying: "Trust the ministers. We're going to get together and decide what is or isn't in the best interests on private land where there is a woodlot or a licence to harvest."
Hon. A. Petter: Finally, the Land Act and all its requirements will continue to apply. They will continue to protect whatever parties have interests protected under the Land Act. All this has to do with is what processes one goes through to ensure that those interests are taken into account when decision-making takes place. The subsequent requirement, after cabinet has made a decision, to consult the Minister of Environment suggests that that interest need not be taken into account by cabinet prior to the decision. That is not our intent; our intent is the opposite. These and other interests must be factored in and taken into account by cabinet prior to its making its
[ Page 12622 ]
decision. The removal of this subsection helps to strengthen that resolve and commitment.
D. Mitchell: Just before we move on from section 3, dealing with these resource management zones, maybe the minister could give us an example of what is really contemplated under this section where resource management zones can be designated. The minister will understand why there's concern.
An Hon. Member: On the amendment.
D. Mitchell: Well, the amendment deals with the principle of the section. But if the minister chooses to dispose of the amendment first before I deal with that question, I'd be happy to do that, hon. Chair.
J. Tyabji: We can either deal with it now or under section 4, but I note that subsection (2) of section 4 is almost identical to this one, and it has been left in. If the minister is arguing that deleting this subsection actually strengthens subsection (1), why would he have one set of rules for this section and a different set for section 4? I don't actually disagree with the minister's reading that deleting it and taking away the protections under the Land Act is somehow in the best interest of the public. However, he has kept it in the next section.
Hon. A. Petter: I think we should deal with it there. The answer is that in the subsequent section, the decision doesn't flow from cabinet; it flows from a different decision-making authority and it's therefore appropriate to involve a cabinet minister, because that minister or designated official would not necessarily have been involved -- as would be the case in this section.
W. Hurd: The minister will be aware that the chief forester has a special function under the Forest Act to set the annual allowable harvest. Since we're struggling with the definition of a resource management zone, I wonder whether the ability of the chief forester to adjust the size of the zone would affect a determination of the annual allowable harvest under the Forest Act. Clearly, if that were to be the case, that would speak directly to the amendment, because under the proposed subsection (2), approval would have to be obtained from the Minister of Environment, Lands and Parks.
My question, I suppose, relates directly to the special function the chief forester has under the Forest Act to determine an annual allowable harvest for a timber supply area in the province. Would his ability to do that be compromised in any way when varying the boundaries of a resource management zone, thereby affecting the annual allowable harvest, by having to seek the approval of the Ministry of Environment, Lands and Parks before doing that? I'm concerned, because as the minister well knows and has articulated in the past, under the Forest Act the chief forester occupies a separate and distinct function, much like the Attorney General, in the sense that he sets annual allowable harvests allegedly free of interference from cabinet.
Hon. A. Petter: I think we're straying fairly far from the amendment, and even from the section. As the member is aware, the power of the chief forester to determine annual allowable cuts is under the Forest Act -- I believe it's in section 7 -- and the chief forester takes account of numerous considerations. Objectives of resource management zones may be one of thoseconsiderations, but this does not have any direct relationship. Certainly you'd have to be pretty creative to see a direct relationship with subsection (2) in particular, which is designed to eliminate a redundancy that I referred to earlier.
Amendment approved on division.
On section 3 as amended.
D. Mitchell: Because the bill offers no definition of what a resource management zone is, and because it's not extremely clear what is being contemplated here -- not to me, anyway.... The minister will know that there's a lot of concern in the province about the protected areas strategy and the new forest land reserve that's been introduced in legislation in this House. In my constituency, there's concern about the spotted owl conservation areas. There are so many different areas being proposed to govern different land use decisions.
I wonder if the minister could tell us -- as an example, perhaps -- how much of the working forest of British Columbia is, in his opinion, likely to come under these resource management zones. Is this likely to be an exception, or is most of the working forest ultimately going to be designated a resource management zone under this act?
Hon. A. Petter: To answer the last part of the member's question, the intention is to both secure and better define the commercial forest of the province through resource management zones. The intention is that most, if not all, of the commercial forest will be designated under resource management zones through this process. Resource management zoning -- in combination with the forest land reserve legislation, which we'll be discussing shortly, I hope -- allows us to deliver on a commitment this government made that land use planning will result in greater stability and certainty -- not only with respect to protected areas but with respect to areas that are available for resource extraction and resource management.
So, following a CORE process, one might utilize the resource management zone to designate on Vancouver Island, for example, a zone for high intensive forestry with greater commitment to silviculture, commercial thinning and other techniques to maximize timber production values. The resource management zone will give us a legislative tool to provide the stability and certainty about the objectives that can be pursued with respect to components of the commercial forest. The intention is, subsequent to land use planning exercises, that when the commercial forest has been defined and contained within a forest land reserve, then, over time, the resource management zones would define virtually all of that commercial forest. This would provide the kind of stability and certainty that forest-based communities, workers and companies have been looking for, so they can make the investments and engage in the kinds of practices that will maximize employment and the economic values that flow from those forests.
D. Mitchell: Just one further point of clarification. The minister has said something quite significant: most of the working forests of British Columbia are likely going to be designated as a resource management zone under this
[ Page 12623 ]
section of the act. What would happen if the provincial protected areas strategy, a CORE process, a local land use planning process dealing with an endangered species like the spotted owl, the forest land reserve, or any other legislated or non-legislated land use process were to conflict with the requirements under this section dealing with resource management zones? What would take precedence? Would the resource management zone, as defined under section 3 of the Forest Practices Code, take precedence over any other process that's currently out there confusing the public and those working in the forest industry? Why do we need yet another tool? I think the minister has indicated why he thinks we need it, but what would take precedence?
Hon. A. Petter: I don't think it's a matter of taking precedence. It's a matter of providing a logical progression and the tools necessary to give stability following that progression.
The CORE process is there to come to some resolution on land use. Then, following from that, the forest land reserve legislation, which we'll discuss shortly, is there to define what the commercial forest is and to include it within a forest land reserve. Then we have resource management zones under the Forest Practices Code of British Columbia Act, which will enable us to define within that commercial forest the various objectives that can be pursued by companies, in order to given them some sense of stability as to what uses are appropriate.
There are provisions in the act for making changes involving public process -- absolutely. But the idea here is to achieve certainty, not to contemplate more changes: to move towards a consensus around land use in the largest sense through CORE; to develop a working forest or commercial forest through the forest land reserve legislation; and, within the working forest, to then provide a definition of the components of the commercial forest and how those components will be managed, so that industry and communities can have stability and make the appropriate investment decisions flowing from that.
[4:00]
These are the building blocks to achieve the kind of certainty that for decades forest-based communities and forest companies have been crying out for. Because there haven't been higher-level plans, land use processes or these kinds of tools, governments would not have been able to deliver even if they had the political will to carry through these processes. We are carrying through these processes, and now we will have the tools available to deliver on that certainty.
W. Hurd: I've listened carefully to the explanation the minister has offered for the definition of resource management zone, but I'm not detecting any additional security at all. The legislation clearly indicates that the chief forester, by written order, may establish an area of land as a resource management zone, and may vary the boundaries of the zone or cancel it altogether. Further, under subsection (b), it says: "...if the Lieutenant Governor in Council has not issued directions to the chief forester with respect to an area, in accordance with directions approved by the ministers." That indicates that cabinet has some sort of potential role in ordering the chief forester to otherwise change or vary a resource management zone. Keep in mind that these resource management zones refer not only to public land but also to the private land within a tree farm licence. I suspect that this is a considerable additional burden or insecurity for an area of private land for which the licensee might be tempted to issue some sort of enhanced management plan which the minister alluded to. This section would almost dissuade a licensee who has a component of public land and private land from coming forward with an enhanced forest management regime, keeping in mind that the chief forester may, at the direction of cabinet, vary or change the boundaries of the zone or cancel it altogether.
The minister is shaking his head, but I can't see where the additional security exists when such a decision by the chief forester could have the effect of reducing the annual allowable harvest as clearly as if the chief forester decided to do it, based on the normal variables that are at his disposal. We need much further clarification on the term "resource management zone" and, in particular, on the ability of the chief forester to vary the boundaries of the zone without appearing to reference any other decision than some sort of directive from cabinet.
Hon. A. Petter: I don't know where the member has been the last couple of years, but in all my conversations with forest communities, one of the common complaints has to do with achieving some stability regarding the commercial forest and the commercial forest base. One of the common complaints is that while parks, for example, are established through a legislative mechanism -- and there can be variation, because we live in a parliamentary democracy, hon. member.... One of the features of a parliamentary democracy is that you can't bind a subsequent parliament. And governments do have the flexibility to make changes, and that's recognized.
Many people in forest-based communities have asked us to give them the security that when designations and decisions are made, they are encased in the same kind of legislative base and carry with them the same kind of political weight as, for example, designations for parks on the land base. Just as parks can be created through legislation by cabinet order, and varied, now resource management zones will be designated in a similar way and can be varied. But don't minimize the significance of that, hon. member. The designation by cabinet under legislation carries considerable weight. Once cabinet has made such a designation, it will be very difficult to make alterations. There are provisions in which the chief forester must seek public input -- where the public interest is significantly affected, for example -- and cabinet will bear a political burden in making a change.
Through the resource management zone we have effectively provided an analogous mechanism to park designation for the commercial forest. That is exactly what forest-based communities have been asking for and what the member has sometimes mouthed -- but, I am afraid, not fully understanding what he has been mouthing -- as his own position. So I am confused that he now stands up and says this is somehow not significant or will contribute to instability. It is the very thing that forest-based communities have been looking for to achieve certainty over the commercial forest for the future.
W. Hurd: Under subsections 3(1)(a) and (b) there is no reference made to public input or involvement. Correct me if I'm wrong -- and I'm sure the minister will -- but this section empowers the chief forester to vary or cancel a zone altogether. We can establish that. Under subsection (b) it also provides the opportunity for cabinet to issue directions to the chief forester with respect to an area. One
[ Page 12624 ]
would assume that cabinet could then direct the chief forester to vary or alter the boundaries of the zone or cancel it altogether. Clearly there is a role for cabinet here to make the determination to direct the chief forester to vary the zone or cancel it. The minister cloaks that in additional security for forest-dependent communities. He talks about the evils of the past sympathetic administration, but clearly there's an opportunity for cabinet to direct the chief forester to do just that. I can't understand how the minister could stand and suggest that that represents additional security for forest-dependent communities in the province.
Hon. A. Petter: What the member apparently doesn't understand is that there are now no resource management zones whatsoever; there is no framework for stability now. Forest-based communities have said that they would like a legislative framework through which cabinet can designate areas of the commercial forest and define what future use is intended for those areas so investment and other decisions can be made with respect to the commercial forest. That's exactly what this legislation does: it empowers cabinet to direct the chief forester to establish such zones. Yes, there is the power to vary them, but as I say with respect to parkland, once created, the disincentives to vary and the political price for doing so will be relatively high. If the member would attend to subsection (5), he would see: "Before establishing, varying or cancelling a resource management zone or objective in a way that significantly affects the public, the chief forester must provide for review and comment in accordance with the regulations." An element of public accountability is built into this.
I guess the member falls into that category of people who decry the good because of some pious hope for something that they claim is the best. The best is often the enemy of the good, I would suggest to the hon. member. This is a major step forward in terms of providing and securing the forest land base that's going to be available for commercial forestry. It provides the same kind of legislative base for the commercial forest as is provided for parkland, for example.
W. Hurd: Having no wish to belabour the point, still one further comment is invited. This particular section applies to Crown land in a provincial forest and private land in a tree farm licence or woodlot licence, so we're dealing with a fairly specific area of forest land. As the minister well knows, woodlot owners and licensees will periodically come forward to the ministry with an enhanced management plan for that particular unit -- an idea to increase the growth and yields over time. What this section tells me is that having filed those plans with the ministry -- at considerable public expense -- there's a provision in here now for the zone to be varied or cancelled altogether.
While I'm somewhat mollified by subsection (5), which is again in the section that allows for public input, what's going to happen is that licensees and woodlot owners may be dissuaded from coming forward with those enhanced management plans because of the ability of the chief forester to alter, vary or cancel the zone under the direction of cabinet. I realize that we're probably stretching debate on this section further than it needs to go. I'm sure the minister is utterly convinced that despite the ability of the chief forester to alter this resource management zone, more security exists than I can read into the section. We'll hope that his interpretation is somehow correct.
G. Wilson: Just for the record and so the minister doesn't go off on a tangent, the Alliance members have no hesitation in saying that we need to establish a working forest and working zones, and we need to look to put some kind of land regulation that provides for that in place. In fact, I've been saying that since 1987. What we're looking at in this particular section is how that's going to be implemented and what that's going to do to existing plans for existing companies that have tenure and may find themselves under a new resource management zone.
I have two questions on this amended section. Subsection (8) says: "The establishment, variance or cancellation of a resource management zone or objective takes effect...." It gives a maximum time line of six months. It says it may be "by the regulations and in accordance with the regulations, at an earlier time specified...." So we've got a maximum of six months, but it could actually be earlier than that. We notice also that subsection (5) says there is going to be a provision for review before establishing this; the minister just commented on that.
The concern that we're having and certainly that I'm hearing from people in the industry is the question of terminating plans, establishing new plans and the speed with which that's going to be required. If they find themselves under this new designation and see that there is a designation within six months, notwithstanding that it may have been delayed by some kind of public review process.... I wonder if the minister can address two questions. Firstly, is there a provision for either an appeal for a longer time or some way of holding back that designation? I don't see where that might be. Secondly, can the minister tell us exactly what kind of public review is envisaged under subsection (5)? Is there another section of the act that this would directly refer to?
Hon. A. Petter: With respect to the last question, I understand there are regulations governing the kind of public input. The initial resource management zone designation would be a product of the kind of process that's taken place on Vancouver Island or is taking place in other parts of this province around land and resource management plans, which involve extensive public input. Variation or revision regulations will provide that there must be gazetted notices provided to district offices and opportunities for public input around those. Presumably, if there was a high level of public interest, then more substantive input than that could be accommodated.
With respect to the first question the member asked, it's important to make a distinction. When we get to part 3, I think the member will find that while the resource management zone designation may change and take effect after six months, that does not affect the operational plan currently in force.
Under amendments I have placed in the possession of the Clerk, the operational plan need not change until the next operational plan becomes due -- not the current plan. In a sense, the higher-level plan changes within a six-month period, and then the current operational plan will come to its natural conclusion. The next operational plan will then have to conform to that change in the resource management zone. So you shouldn't assume that a change in the resource management zone automatically triggers a change in the operational plan. That change in
[ Page 12625 ]
the operational plan only comes about when the operational plan naturally comes up for renewal and would be amended in any event.
G. Wilson: If the minister could just clarify, were those changes in the amendments that were tabled today? I haven't had a chance to read through all of those.
Hon. A. Petter: The answer is yes.
C. Serwa: In going through this section 3, there is not very much there to provide any sense of comfort on the part of the licensee, the holder of tenure. And there's very little requirement in here to encourage the government to be fully accountable.
I was proposing an amendment on this section:
[SECTION 3, by adding the following subsection: (10) A person who believes that he has suffered loss in value of land, timber or cutting rights by virtue of the operation of sections 3, 4, 5 or 6 of this Act, other than loss which is not compensatable under the terms of the Forest Act, may apply to the Minister for compensation equal to the fair market value of the compensatable loss, and such compensation, subject to judicial review, must be paid within one year of the loss being claimed.]
It is apparent that there is a potential for downsizing with the establishment of these forest management zones. There's certainly an industry concern with either the loss of cutting rights or volume, or restrictions being placed which will cost the industry a great deal of capital.
[4:15]
The Chair: Hon. member, the Chair has reviewed your proposed amendment and has trouble with it on two accounts.
The first is that it would probably be better as a stand-alone section. However, that is enough of a grey area that the Chair would accept that amendment. The second area in which the Chair has a problem with the amendment -- it's the area the Chair will not allow the amendment to proceed in -- is that it has a potential to seek to impose a charge upon Treasury. On section 698 in Beauchesne, subsection (7), that is clearly not permissible. As a further reference, the Chair would cite the Journals of this House of June 17, 1969, on page 1172. Hon. member, the amendment is out of order.
W. Hurd: Before we leave this section, because it does have implications for private land holders in the province, it's my understanding that a transition period has been announced by the ministry for input from government with respect to how the regulations that accompany the act will apply to private land. I wonder if the minister could clarify exactly what he expects tree farm licence holders, who have private lands attached to their working or management units, to do over the next six months. Are they to liaise with the ministry to provide some input or a framework as to how these regulations should apply? Perhaps the minister could clarify that for the committee at this time.
Hon. A. Petter: Harking back to the earlier distinction I made, I think the provision the member may be thinking of is section 216, which deals with the inclusion of private managed forest land. This section deals only with private land that is contained within woodlot or tree farm licences and is currently governed by the requirements of the Forest Act through contractual arrangements.
In respect of this private land, the consultation process already engaged in is applicable. Therefore there is no subsequent consultation process. The further consultation process that I think the member is alluding to has to do with the inclusion of further private lands -- in particular, private managed forest lands. I'd be happy to discuss what that process will be when we reach section 216.
Section 3 as amended approved.
On section 4.
Hon. A. Petter: I move the amendment to section 4, which is in possession of the Clerk. That amendment amends the proposed subsection (2) by adding "or a person authorized by that minister" after the words "obtain the approval of the Minister of Environment, Lands and Parks."
On the amendment.
G. Wilson: The obvious question on the amendment is why in the previous section, given that both of them are involved in similar types of processes, we delete the section that makes it a mandatory requirement and then in this section we actually beef it up by saying that it can be a person authorized by the minister, which is what this effectively does. The minister was alluding to that earlier. Perhaps he could explain it again.
Hon. A. Petter: The question goes both to the amendment and the section it's amending, but I'm happy to deal with it under the amendment.
The answer has to do with the fact that the decision that is being made here is not made by cabinet. The Minister of Environment, Lands and Parks would have been involved, and his officials, through that minister, would have had input. It's a decision being made by the district manager and a Ministry of Forests official. Therefore it's appropriate that consultation take place and agreement be sought from the appropriate minister or designated official from the Ministry of Environment, Lands and Parks, given that the prior decision to proceed would not necessarily have involved that minister or his official.
G. Wilson: I'm not sure that this is a weighty enough point to spend a lot of time on, but I would argue exactly the same argument that we were unsuccessful in convincing this minister with under section 3.
In this instance, however, there is a provision whereby a protection on the basis of "an interest issued or granted under the Land Act" is covered by virtue of the fact that there is mandatory approval by the minister or, as the amendment suggests, and speaking to the amendment, "a person authorized by that minister." That begs the question. I think I just heard the minister say that the person authorized has to be an official as defined under this act. What I'm hearing the minister say is that it will have to be somebody from within the ministry that the minister represents. But if not, maybe we could flesh that out a little bit, because clearly there's a legal implication here with respect to an interest issued under the Land Act.
Hon. A. Petter: It would be a person authorized by the minister to speak on the minister's behalf and therefore be reflective of the policy and position of the Minister of
[ Page 12626 ]
Environment, Lands and Parks and that of his or her ministry. It does not specify that it need be an official, but I think in the normal course of events it would be an official.
W. Hurd: Many of the issues raised with respect to section 3 certainly apply here. I wonder if the minister could briefly clarify for the committee his definition or the ministry's definition of landscape unit, as it applies to this planning process. Are we referring to areas where the timber needs to remain in an unharvested state because of protection of visual scapes or some other type of value that the ministries of both Forests and Environment may want to protect? Could the minister offer us an explanation of the term "landscape unit"?
Hon. A. Petter: I think, just as a matter of procedure, hon. Chair, that it would be more appropriate to pass the amendment first and then come to this question, which speaks more generally to the section as a whole.
Amendment approved.
On section 4 as amended.
Hon. A. Petter: The notion of landscape units provides for another kind of strategic planning at a level which would be geographically somewhat smaller than the resource management zone, one more likely to approximate, say, watershed areas and logical planning areas. This section will provide for strategic planning within those smaller areas and will assist the public and the ministry in better defining the appropriate plans for those smaller units, which will in turn be contained within the larger resource management zones and have to be consistent with the objectives of those resource management zones.
W. Hurd: Again it's important to emphasize that we're talking about provincial forest land in addition to private land that may be attached in a tree farm licence or woodlot licence. Clearly the establishment of a landscape zone would have the effect of potentially alienating some timber allocations or timber-harvesting rights.
The minister will be aware -- and I know his ministry has received input -- that both sections 3 and 4 do have what is interpreted to be widespread significance in terms of expropriation, or the taking away of rights to private land. It was alluded to earlier in the debate by the member for Okanagan West, and I think it needs to be reiterated here. I know the ministry has received feedback from licensees that in fact both these sections represent a form of potential expropriation without levels of compensation.
Again I point out that the district manager not only establishes and sets the objectives for the landscape unit but may vary or cancel it. These directives apply not only to the public land within the TFL but also on private land as well. I know the minister has received substantive input on this with respect to sections 3 and 4. Again, I would welcome his assurance, if he can offer it, that subsection (4) will not alienate the rights of private land owners by enabling the district manager to come into that private land component and say that we are going to establish a landscape unit for purposes of this value. It will be subject to approval by the Ministry of Environment, Lands and Parks, and after a six-month period there appears to be no window of defined time attached to this designation. The district manager could stick land into a landscape unit, and there it could sit for an indefinite period of time. I know the minister has received considerable input on this issue, and it needs to be discussed in some detail at this time.
Hon. A. Petter: What we are talking about here is providing a framework in which licence holders with respect to public and private land within tree farm licences or within Crown forest lands can achieve much greater certainty. The establishment of a landscape unit will enable the ministry to articulate far more clearly what the specific management requirements are in order to maximize the use of the resource within the landscape unit. In resource-management zones that are designated for intensive forest use, that may mean that road construction will be prescribed that facilitates more intensive forest activity. Presumably roads would be active for longer periods of time, perhaps in order to enable more intensive silvicultural activities. In respect of certain community watersheds, it may mean landscape units in which some requirements are put in place to protect the water quality and other values.
The creation of a landscape unit doesn't presuppose that it will increase or decrease harvesting rights. What it does presuppose is that the ministry will have to be up front, explicit and clear about the requirements for licence holders and others to be able to rely upon a set of plans that right now do not exist but will exist as a result of this code. In that way the code will instil certainty. It will give prior notice and enable much greater accountability through to the public and to licence holders to be aware of, to debate and to participate in the formulation of appropriate planning standards for particular zones that in some cases will increase opportunities for more intensive timber harvesting. In other cases it will ensure that timber harvesting doesn't compromise other values, thereby gaining greater security for what timber harvesting does occur.
W. Hurd: I know that interpretation the minister has offered is not shared by others who have tree farm licences in the province and who now find themselves unable to divorce the private land from the public land, unless they simply turn in the licence. I know that the minister has received input with respect to the current rules of expropriation under the Forest Act and the fact that in their view this particular provision, especially subsection (4), does provide for expropriation without compensation. I accept the minister's explanation that that isn't necessarily the intent, but under this section there is a possibility for land in the private component of a TFL to be alienated from being harvested without a definition or a time frame for dealing with the special landscape unit. It's fair to say that the district manager may or may not have all the variables at his disposal in making that determination. As a matter of precaution, he may declare an area to be a special landscape unit for the purposes of retaining future options down the road.
[4:30]
I again advise the minister that there is a lot of concern out there among licensees about the impacts this has on expropriation, and I am certain that those individuals will be looking at the pages of Hansard with interest in order to be satisfied in their own minds that we aren't alienating or encumbering private land without any reference to expropriation. I guess what I would settle for is an assurance from the minister that this section will in no
[ Page 12627 ]
way impede or restrict the expropriation provisions that currently exist in the Forest Act in this province.
Hon. A. Petter: I'm a little confused by the member's question. Right now, hon. member, members of the Forests ministry and others who are responsible for various components of planning -- within tree farm licences, for example, or within other forestry units -- make decisions all the time about how best to protect the appropriate values. Those decisions are not very often explicit, because there is no legislative requirement that they be made explicit.
By creating a landscape unit in a legislative provision for landscape units, we have a requirement that those management provisions have to be made explicit, through this process, rather than being imposed implicitly by officials. That can only provide greater security to licence holders and others who want to know up front what the rules are -- let the sun shine in. That is exactly what this does. So there isn't an alteration, except one that illuminates what has previously taken place in a less illuminated environment. Therefore, in my view, the question of expropriation and compensation is really not relevant or germane.
W. Hurd: I have one further clarification and one further observation. Clearly, as the minister has acknowledged, a landscape unit can be for a whole range of values. It could be the protection of a watershed, for example, or an environmental initiative in totality. It's not related to harvesting or limits on harvesting at all, when we deal with the annual allowable harvest calculations. I think it's clearly evident that the landscape unit has the potential of affecting or reducing the amount of harvest on private land. There should be some reference to compensation in this section of the bill.
I will ask the minister again: is he completely satisfied, and can he assure the committee, that the current rules under the Forest Act with respect to compensation for the alienation of timber-cutting rights on private land are in no way going to be encumbered by this particular section? That's a pretty simple question. Do the rights that licensees have under the Forest Act still exist? Will the designation of a landscape unit under the Forest Practices Code have any impact on their rights under the Forest Act?
Hon. A. Petter: Currently, when one imposes a management regime under the Forest Act -- presumably through a contractual arrangement, as was done in the Tsitika or Nahmint -- there is no provision for compensation as a result of the economic consequences that licence holders may feel they have experienced as a result of that management regime, just as I assume the government would not expect compensation if we provided opportunities for greater timber harvesting as a result of a management regime, which may well be the case in intensive-use areas. That doesn't change here.
All that is happening is that instead of the management plans being imposed informally -- or through contract in places such as the Tsitika or the Nahmint on Vancouver Island, which did not facilitate certainty and did not provide for accountability, they will now be promulgated in resource management zones or landscape units, depending on the size of the area, and they will be available in a much more public and accountable way. The rules of compensation do not change. Currently there is no compensation for companies that are required to adhere to management plans, and thank goodness for that. There will be no compensation under this, because good management is part of the Crown's responsibility; it is certainly not something that should be compensable to forest companies.
W. Hurd: Just one further clarification under section 4(6), which states: "Before establishing, varying or cancelling a landscape unit or objective in a way that significantly affects the public, the district manager must provide for review and comment in accordance with the regulations." Could the minister perhaps describe exactly what kind of review and comment is being anticipated here? Is it the kind of comment that the ministry solicits on a change to the annual allowable harvest in a timber supply area, for example? Are we talking about a public meeting here? I'd certainly welcome a clarification of exactly what the district manager is expected to do before altering or varying the size of the landscape unit.
Hon. A. Petter: Some of the requirements are set out within the proposed strategic planning regulations, and they include advertisement in newspapers so that the public is made aware of the availability of the proposed order that would establish or vary the landscape unit through the ministry's offices. Again, I'm sure that if there were sufficient public interest, additional opportunities beyond those required in the regulations would certainly be facilitated, because the desire here is to provide for public input. But public notice, opportunity for comment and availability are the minimal requirements. As I said, if there were greater public interest, I know that ministry officials would facilitate opportunities for input through public meetings or other forums.
R. Neufeld: I listened to the minister talk earlier about a land base, which is something that I also have been in favour of for a long time for forestry, agriculture and all other industries so they know the parameters within which they can operate. The minister also says that section 4, landscape units, gives greater certainty to tenure holders of Crown land, TFLs or woodlot licences. It still baffles me how the minister can feel that this can give greater certainty. Simply because of encroachment of urban sprawl, such as a housing development at Bamberton or whatever on a mountainside -- more specifically on the Island, I guess, than in the interior or the north.... This gives the district manager the right to all of a sudden cancel that landscape unit. If it said to cancel the unit and replace it as best as possible, then I can see that it would give some certainty to industry. But by strictly cancelling it, or even by moving the boundaries.... You can move the boundaries and still maintain the cut you had before, that's for sure. But I don't see how cancelling the unit just like that gives anyone any certainty. Maybe the minister can explain it a little further for me.
Hon. A. Petter: First, I'm very encouraged by the member's comments regarding the encroachment of urban sprawl on the forest land base. Perhaps the member will exercise a little Reform independence and vote against what I understand his leader's position to be on the forest land reserve legislation, because that's what that legislation is designed to address. It's designed to prevent
[ Page 12628 ]
the encroachment of development and urban sprawl on the forest land base.
Having said that, though, one has to always look at the starting point. The starting point right now is that we do not have landscape units; we do not have a formal process through which the management regime at a watershed level is clearly articulated. The formalization of that process, the creation of landscape units, the public involvement and the accountability of those units will make it much more difficult to make changes, because there will be a formal mechanism. Up to this point, there has been no formal mechanism. All one has is a variety of arrangements set up through contract and internal policy in which planning is done, and it is very difficult for the public to gain access to that or comment on it.
Certainly, in any system of planning, change must be taken into account. It would be irresponsible to have a planning regime that didn't take account of the need for change. But it would be equally irresponsible to continue with the status quo, where we have no planning regime and no public accessibility. By creating landscape units that the public can see, they will be aware of what the expectations are. They will be aware when changes are proposed and have an opportunity to bring pressure where those changes are undesirable -- as will license holders, workers and other concerned citizens. That is a tremendous step forward, and it does instil greater certainty and accountability as a result of a much more open and accountable planning process.
Section 4 as amended approved.
On section 5.
Hon. A. Petter: I move the amendment to section 5 that is in the possession of the Clerk. That amendment deals with subsection (2) by adding, after the words "obtain the approval of the Minister of Environment, Lands and Parks," the words "or a person authorized by that minister."
Essentially, the purpose of this amendment is to do what was done in the amendment to the previous section: to enable the Minister of Environment, Lands and Parks to authorize a person, who will no doubt be reflective of the minister's policies and those of his ministry, to provide the approval authority.
On the amendment.
G. Wilson: I just have one comment. It goes back to the fact that we've seen the same amendment brought into three sections dealing with exactly the same kind of process, notwithstanding the minister's comments against.
In section 5(2) it says: "...the district manager must obtain the approval of the Minister." -- and then it goes on to this designated person. One might argue, if you're looking at sensitive areas or objectives for those protections, that this is an area where you may indeed need a much broader area of review outside of the ministry. I'm assuming that if there's a sensitive area set aside or defined, the district manager is then going to have to provide some kind of written explanation with respect to that decision when it comes down. It's not clear with this amendment that the authorization process would not allow the designatee to circumvent that process.
Hon. A. Petter: Subsection (2) and the amendment just deal with the issue of interest under the Land Act. The more general question that the member is addressing, namely, the involvement of another ministry -- in this case the Ministry of Environment, Lands and Parks -- in the establishment, variation or cancellation of objectives for sensitive areas, is provided for in subsection (6).
G. Wilson: I'm just curious. I don't want to belabour it, but I still feel very strongly that the deletion under 3 was the wrong thing to do. I don't want to revisit that, but clearly if the minister is saying that this only deals with the interest issue granted under the Land Act, then presumably that would apply equally in all three cases, as it does in this case. The minister is saying it doesn't; I would argue it does. Could the minister explain why it doesn't?
Hon. A. Petter: Let me see if I can be as agreeable as possible with the member. It applies equally that there is an interest that must be taken into account in all three cases. The difference is that in section 3, which we've already discussed, that interest will be taken into account necessarily in a prior step -- namely, the approval of cabinet or three ministers of cabinet. That is not the case in section 4 or 5. For that reason, a subsequent process to ensure that interest is taken into account in those two sections was deemed necessary.
Amendment approved.
On section 5 as amended.
W. Hurd: Section 5(1) clearly provides a role for a designated environment official with respect to this particular sensitive area designation. Could the minister clarify for the committee whether the Environment ministry has a specific role with respect to section 5 that they might not possess with respect to the two sections we dealt with previously, which talked about resource management zones and landscape zones? Is there a reason for what appears to be a direct involvement by the Ministry of Environment in this particular section? I'll ask that question first.
[4:45]
Hon. A. Petter: In all cases -- the resource management zone, the landscape units and the sensitive areas -- there is a recognition that the Ministry of Environment, Lands and Parks has a role. That was reflected in the case of the creation of the resource management zones through cabinet or through the involvement of three ministers, one of whom is the Minister of Environment, Lands and Parks. In the case of landscape units, it was reflected in the involvement of the DEO. In the case of section 5, it's reflected here as well through the involvement of the Ministry of Environment in subsection (6).
W. Hurd: My reading of sections 3 and 4 as it relates to section 5 is that with respect to a landscape unit and the resource plan, the initiative came from the Ministry of Forests. Clearly, in section 5 we're dealing with a direct role by a designated environment official, who may identify special circumstances that would warrant a sensitive area to be set aside.
I'm just seeking clarification on behalf of a private forest licensee. Would this particular section mean he would be faced with a separate initiative by the Ministry
[ Page 12629 ]
of Environment, with respect to a sensitive area that may or may not be channelled through the Ministry of Forests? Would this specific section have the potential to allow the Ministry of Environment to pursue a unilateral initiative with respect to a sensitive area -- keeping in mind that in the two previous sections some initiative from the Ministry of Forests appeared to be required?
I don't see reference made to the district manager in conjunction with the designated environment official in the two previous sections. Clearly 5(1) is a change with respect to those designations. Again, I ask the minister whether in this particular section the Ministry of Environment has a unilateral option to pursue a sensitive-area designation in a working forest zone in the province.
Hon. A. Petter: One needs to distinguish between what I would call the triggering event and the designation process. Because sensitive areas may be sensitive because of their environmental values, there is signalled in section 5(1) a recognition that a designated environment official may act as the triggering instrument for a designation. That does not detract from the fact that the designation still must be made by the district manager, a Ministry of Forests official.
In respect to the other comments by the member, no, there is no difference. The district manager making that decision must obtain the approval of a designated environment official here. In the previous section, with respect to the objectives of landscape units, there had to be involvement and approval from the Ministry of Environment designated environment official as well.
W. Hurd: Regarding all the other rights and responsibilities under section 5 -- which basically parallel those in sections 3 and 4 about the district manager establishing objectives for sensitive areas and then varying or cancelling the areas, would the designated environment official potentially be the triggering ministry employee there as well? Does the minister anticipate the designated environment official approaching the district manager first, with respect to setting aside a sensitive area? Or would he expect the official to work through the Ministry of Environment first?
[H. Giesbrecht in the chair.]
I'm just trying to determine the reporting arrangement here, because this is the first section where we really see an overlapping jurisdiction between the Ministry of Forests and the Ministry of Environment. I would be comforted by the minister's assurance that despite the enhanced opinion of the environment official in this section, there would in fact be a close working relationship with the district manager of forests, and we wouldn't see a fishing expedition by an environment official through the channels of his own ministry and then suddenly have it emerge at the senior level without the acquiescence or knowledge of the licensee.
Hon. A. Petter: The section makes it clear that in terms of the administrative process that results in the designation of sensitive areas and their objectives, that process will be conducted by the Ministry of Forests. As the member is aware, and has suggested in his comments, a close working relationship has developed between the Ministry of Forests and Ministry of Environment officials about planning issues -- sometimes informal, sometimes formal. The Ministry of Forests commonly seeks the advice of designated environment officials, even as part of operational plans. This would simply provide the same kind of process of cooperation and consultation between Environment and Forests at the strategic planning level. That is highly desirable, because it means that both ministries will essentially be signing on to the strategic objectives. Therefore, licence holders and others will not be caught in the situation they have sometimes been caught in the past when we had informal arrangements in which ministries were not working together and suddenly a licence holder may be caught between two ministries whose objectives were different. Here, the process is one in which consultations will take place between the ministries in a cooperative spirit to ensure that the objectives established for these sensitive areas are supported by government generally. Licence holders can then depend upon that and not be caught out later on by finding that some other ministry has a different point of view.
[M. Farnworth in the chair.]
W. Hurd: I have one further point that relates to the time frame in which an area may be placed in a sensitive-area designation. The Minister of Environment may wish to establish a sensitive area for purposes of gathering more information or for further study. It's not necessarily the case that an area so designated would stay as a sensitive area if it were determined that the values identified in a cursory way proved not to be ones of long-term sustainable interest.
My question relates to cutting permits which are alienated or affected by the designation of a sensitive area. Under this section there is no time frame for the ministry to make a decision on whether or not a sensitive area is indeed sensitive, or whether it would stay in that designation for an indefinite period of time. This is another issue that I know the minister has received input on from licensees. In subsections (3), (4) and (5), we are dealing with the ability to designate land, with no time frame for it being reintroduced into the working forest if the ministry decides that it isn't an appropriate land designation. I realize that it's difficult, if not impossible, to address that concern with respect to an amendment under this section. I would invite assurance from the minister that where a cutting permit is alienated by a designation, if the designation is decided not to be desirable and is returned into the cutting permit, that there is some sort of time frame available. Is that an expected part of this section?
Hon. A. Petter: Two points arise from the member's question. First, the answer I gave earlier applies here as well -- namely, when we get to the operational planning sections in part 3, we'll see that that will not have an impact on the operational plan until that plan comes up to its anniversary.
With respect to the member's suggestion that somehow sensitive areas might be created hypothetically, that would be inconsistent with the wording of this section, which makes it very clear that there must be a requirement to create sensitive areas based on identified special circumstances. This is not something that could allow a fishing expedition or the creation of de facto study areas or anything of that kind; this is a planning tool that
[ Page 12630 ]
enables areas that for good reasons have been identified as sensitive to be factored into the planning process so that timber harvesting can proceed in a way that respects the values of that sensitive area.
G. Wilson: I just have a quick question on section 5. It has to do with who initiates the question on the designation. One of the problems with the way this bill is crafted is that it gives the appearance.... It may not work that way in fact, but it certainly gives the appearance that there is a newly created set of hurdles that people in the industry are going to have to clear. I'm not sure that they're necessarily going to object to having to clear them. As long as they know they're there and are not going to move at some point, then they know clearly what is in front of them.
The problem with this is that it would appear that there is an opportunity for a secondary process to be underway within a community with respect to the designation of those areas that may be deemed sensitive. That can happen through a variety of land use planning processes, watershed management processes, and regional or local or municipal government authorities that deal with aspects of downstream effects and the kinds of things that can come from activities in forest lands. I'm curious to know if there can be an intervention by an interested third party once designations have been made with respect to the establishment of these areas. Could that third party initiate some form of designation of sensitive areas in that defined region? Is that possible?
Hon. A. Petter: This section, along with the other sections that we've just debated, really creates a tool kit that can be employed to give effect to local planning decisions. This particular section is the tool kit that would be used to create sensitive areas. Therefore we have an instrument. If a local planning process -- say an LRUP process or an even more localized process -- identified some sensitivity within that area, then those who participated in that process, very often involving the public, can have some assurance that there's a mechanism in the act to give effect to that and to create some stability around that sensitivity. If we have a local LRUP process that identified certain sensitivities within an area that need to be respected, the culmination of that process could be, under this section, to designate part of that as a sensitive area to be managed in accordance with the kinds of management regimes that was agreed to as a result of that LRUP process. This is really a set of tools. It's not there to preclude planning or public involvement; it's there to give some security once public planning and public involvement have culminated in a decision.
G. Wilson: I'm hesitant to get into site-specific issues and examples, although I think the minister knows where I'm coming from on this question. I'm hearing from the industry that they don't want to have the hurdles moved or changed or raised after they've entered into the process. They want to acknowledge what the process is going to be, and say: "All right, this is what we have to do to fulfil the obligations under this code, but don't change it once we're midway through it, and don't change it when we've got initial approval on a project." That's a concern, because that costs money, and it makes it difficult to file plans.
[5:00]
What I'm curious about here is whether or not, given that there are often parallel planning processes going on within the greater regional area, that land use planning designation may have the downstream impact of upstream logging that may well be in these designated areas. The area is not designated watershed, and perhaps it should be, could be or may be. After that process is put in place, is it then possible for a third-party interest to initiate a special area objective in an area where assignments have already been made? In other words, can it happen subsequent to the processes we just discussed under sections 3 and 4?
Hon. A. Petter: I'm not quite sure what the member means when he talks about a third party initiating a process. This is the only legally binding planning process that will exist. If some people feel that there needs to be a new LRUP process, for example, then they can, as they do now, argue that such a process should be established. It will be up to the relevant officials to make that determination. There's no mechanism for giving effect to those processes other than this.
Again, let me be as complete as I can. I hope to capture the answer that the member is looking for. I'm not quite sure where his question is leading. In terms of what we have right now, first there is a six-month period before these plans would take effect. Second, current cutting permits and operational plans will not be affected until they reach their anniversary dates, in which case they have to come into effect.
Third, referring to the hurdles -- and I don't like the hurdle metaphor -- this gives phantom hurdles some definition and concreteness. In other words, there are hurdles out there now, but they're not clearly articulated in one place under a legislative framework. Now they will have to be. If sensitive areas are to be designated, then they will be designated in a very explicit way. The public will know those hurdles are there, and industry will be aware of them. When they reach their anniversary, their operational plans will then have to take account of those hurdles. For that reason it will be more difficult to change the hurdles, and there will be greater stability. If I use the hurdle metaphor, that may help to explain what I think the member is getting at.
G. Wilson: I think I understand where the minister is coming from, and he has in large measure answered the question. I'll put two very simple questions just to flesh this out a little more.
Six months after the establishment is put in place, that will define the areas that are considered to be sensitive areas within the overall area that cutting can then take place. That's defined. Subsequent to that being done, once those distinctions are made.... I know the member for North Vancouver-Lonsdale is ecstatic about his announcement this morning, but it's a little distracting right now. We all look forward to the construction of the Gibsons bypass as a result of that little bit of gratitude, as I said once before.
I guess what I'm getting at here.... Let me use a real example in order to cut through this more quickly. In the Tetrahedron area on the lower Sunshine Coast, for example, a LRUP has been done, and an area has clearly been defined by the LRUP -- 86 percent of which they decide should be set aside. They're now dealing with a section that is about 14
[ Page 12631 ]
percent, which some people say is sensitive and others say is not. If it goes through this process and a decision is made to designate it a sensitive area.... Let's argue that 86 percent is accepted and 14 percent is not. Once that decision is made, is it possible for a secondary process to come after that 14 percent, which would require the Ministry of Environment to look at that area independently of the initial assessment that was done through the LRUP process? That's what I'm getting at.
Many of us would argue that 100 percent should be set aside. The industry clearly doesn't argue that, but when the decision is taken, they want to know if the decision is final. Is there an opportunity for a subsequent process to come in under this section?
Hon. A. Petter: The intention of having this kind of planning tool is to provide a greater degree of stability and certainty. Like any planning tool, it's not immutable; it is conceivable that it could be changed, but it has to go through some public process to do so. There may be other concerns raised with respect to that area, and certainly the designation wouldn't preclude those being explored by other ministries. The idea of a planning tool of this kind is to try to achieve a greater measure of stability and certainty and a more prospective approach than would occur without this planning tool.
Right now, if an LRUP process comes to some conclusion, the discretion is left, as I understand it, with the district manager as to what effect to give to that, and that doesn't give a lot of permanence, stability or recognition to the plan. This will give greater recognition where it is decided to proceed to actually designate the area under this section of the Forest Practices Code of B.C. Act. That doesn't mean no other planning can take place. It doesn't mean that this plan can't be revisited, but it does mean that there will be some significance and importance attached to that planning exercise, which previously would not have happened, because of this legislation and because of that framework. So it does envisage the possibility of changes, but it tries to provide for greater stability than would otherwise occur.
Section 5 as amended approved.
On section 6.
W. Hurd: Again, section 6 is a continuation of the abilities of the chief forester to establish other designations for forest land in the province, but there's one particular segment after section 6(2)(b) that I find rather interesting. It says specifically: "...if the holder's rights under the permit, licence, prescription or interest would be adversely affected by the establishment, variation or cancellation" -- of an interpretative forest site or recreation site. I find that to be a rather perplexing addition to section 6, because in sections 3, 4, and 5, there has been no specific mention of the holder's rights being adversely affected. I wonder why the ministry would see fit to include a reference to the holder's rights being adversely affected if the chief forester establishes an interpretative forest site, recreation site or recreation trail, and no mention is made of the holder's rights with respect to sensitive areas, adjustments to the resource management zone or a landscape unit. I find that to be an anomaly, and I wonder if the minister could briefly explain why the resource holders have the potential to be adversely affected if the chief forester establishes a recreation site but not if he establishes a landscape unit, varies the resource management zone or sets up a landscape unit. I don't see the apparent discrepancy or dichotomy there.
Hon. A. Petter: This section is largely an incorporation of what's currently in the Forest Act -- this is true of the next section too, incidentally -- but it has to do with the fact that we're talking largely about a single use. This is not part of the overall integrated resource management of the forest; it is about setting aside, or designating, a component of that base for a particular single use, one that clearly would preclude the other potential uses. Therefore it's dealt with somewhat differently from the general integrated resource management requirements that require a weighing and balancing of a variety of values and resource interests that exist within the forest.
W. Hurd: Clearly, however, with respect to section 6, where there exists an interpretative forest site, a recreation site or a recreation trail, under section 2 the chief forester does have the right to vary or cancel an area under subsection (1). I mean, he does have the ability, one would assume, to designate an interpretative forest site, to alter or change a recreation site or a recreation trail. Specific reference is made to the holder's rights where the chief forester would do that. Again, I find it rather puzzling that the chief forester -- I assume, under section 2 -- is required in some way to recognize the holder's rights under the permit, licence or prescription of interest if they would be adversely affected.
Perhaps I can then ask the minister: if the chief forester were to vary or change an interpretative forest site and it did affect the holder's rights adversely, what steps would then be taken? Would there be additional harvest allocated elsewhere? Could the minister clarify that? For the first time in the three sections we have been dealing with, there appears to be a recognition that this order by the chief forester might affect the holder's rights. Could the minister advise us what redress or what possibilities would exist for the holder in the event that the chief forester decides to amend or vary the interpretative forest site in any way?
Hon. A. Petter: I think the section is pretty clear. The establishment, variation or cancellation cannot take place without the consent of the licence holder. Therefore the chief forester is not in a position where compensation is called for. Unless the consent is given, the variation, cancellation or establishment cannot proceed.
W. Hurd: Again I just ask for clarification. When we are dealing with these definitions.... I understand that an interpretative forest site is an area where a special initiative is underway with respect to enhanced forest management. But do the definitions of recreation site or recreation trail mean that if someone were to enter an area of Crown land and build an informal trail in some way, or if the decision were made to extend a recreation site or a trail, that would require the specific approval of the licensee? Certainly I can see the potential for some difficulties here. I think there is a universal assumption out there that trail-building on Crown land represents something of an inalienable right. Would this refer just to recreation sites or recreation trails that were constructed by the ministry, or would they apply to any trail for which a permit might be required?
Hon. A. Petter: It was a very long question, but I think the legislation speaks for itself: "Before establishing, varying or cancelling an area under subsection (1), the chief forester must obtain the consent of the holder of...."
[ Page 12632 ]
-- and then it goes through the various permits. So the answer is yes, that consent must be sought and obtained before the establishment or variation of the interpretative forest site, recreation site or recreation trail goes ahead.
Section 6 approved.
On section 7.
W. Hurd: I have a quick question with respect to the maintenance of interpretative forest sites and trails. Are we dealing with the same kind of consent that is required with respect to accessing a trail for maintenance and repair or to close an interpretative forest site? Would the same provision for consent under section 6 apply to section 7?
[5:15]
Hon. A. Petter: No.
W. Hurd: Perhaps the minister can explain what appears to be somewhat of an anomaly. One would assume that under section 7 the ministry has the ability to "develop, maintain, repair or close an interpretive forest site, recreation site or recreation trail" without achieving consent. Is that a correct assessment of the rights under section 7?
Hon. A. Petter: Again, this is largely an incorporation of existing sections, under section 104.1 of the Forest Act. Once a forest trail has been designated, it is within the prerogative of the ministry to maintain that trail or to close it, in terms of its use, without dedesignating it. Dedesignation would require consent, as the previous section indicated. Having established and designated that trail, the responsibility for it and the maintenance of that trail is one that the ministry can act upon without the further consent of the permit or licence holder.
W. Hurd: I have one other question, and I'll try to make it brief. With respect to section 6, there is acknowledgment that the establishment of an interpretative forest site may affect the holder's rights, and that's the reason for provision for consent. Would it not be logical to assume that the closure of an interpretative forest site -- recreation site -- could also affect the holder's rights if that area were not returned to the licensee as part of the working forest or part of the annual allowable cut calculation? Is it the anticipation of section 7 that in the unlikely event a recreation site or trail were closed, it would return to an area available to harvest? Is that the implied assumption with respect to section 7?
Hon. A. Petter: Quite simply, when a licence holder gives its consent under section 6, it does so knowing that the ministry then has certain prerogatives and rights that flow under section 7, including the right to develop, maintain, repair or close the trail. Therefore the initial decision made by the licence holder, either to give consent or not, incorporates within it the understanding that certain rights flow from that decision, including the ability of the ministry to maintain or close the trail as it sees fit.
W. Hurd: So there is not an assumption, then, that the land would return to the working forest or to the annual allowable cut of the licensee. One would assume that under section 6 the licensee would provide consent, recognizing the fact that in some way there would be an adjustment to the land base available for forest harvesting. Under section 7, if the ministry were to decide to cancel the designation -- assuming they didn't want to maintain the expense of it -- would there be an assumption that the land would then return to the licensee in some way as part of its management and working plans for forest harvesting?
Hon. A. Petter: If the decision were made under section 6, with the consent of the licence holder, to cancel the establishment of, say, a recreational trail, then that designation would cease and the land would form part of the land base. If it's a matter of closure without designation, then.... There are circumstances under which, for a number of conditions -- weather conditions or conditions pertaining to safety issues or others.... There may be a decision to close an interpretative trail for a period of time, and that doesn't necessarily presuppose that the land would go back into some other use. So there are two things here. If the designation is withdrawn and the licence holder provides consent, then it reverts back to its previous status. If something short of dedesignation takes place in the form of closure, then that's presumably because the licence holder is of the view -- because consent is required -- that there is a need to maintain that designation for some legitimate purpose. That is what is contemplated under section 7.
Section 7 approved.
On section 8.
R. Neufeld: Section 8(6) reads: "If 2 or more standards apply to a specific area of British Columbia, the standard which provides greater protection and conservation of the environment and the forest resources prevails." Can the minister explain who would make this decision? Would it be the Ministry of Forests, the chief forester, the regional manager or the Environment ministry? Who would make the decision on what standard applies?
Hon. A. Petter: It's a general requirement that applies to all officials empowered under this act to make decisions. It's very often the district manager, if that's the official in charge of a particular cutting permit, for example, but it pertains as a generalized requirement to all those who have decision-making authority under the legislation.
G. Wilson: This whole business of the establishment of operational plans and so on is a major bone of contention among some in this act. I notice section 8(1) says: "...in accordance with the regulations, the chief forester may establish, vary or cancel standards...." They talk about the standards of preparing an operational plan or carrying out a forest practice. Then it goes on to suggest: "In a standard under subsection (1) the chief forester may do one or more of the following: (a) delegate a matter to a person; (b) confer a discretion on a person; (c) make different standards for different persons, places, things or transactions." This causes some concern because it isn't clear. We're supposed to be talking about stability, consistency and putting in place a sensible planning process. In the cancellation of these standards, or in changes that will occur under this section, how there is going to be any consistency applied with respect to this section of the act?
[ Page 12633 ]
It would be useful if the minister could tell us a bit about how he intends that this would be consistently and fairly applied.
Hon. A. Petter: I can understand the member's perception here, but it might help the member to understand where this section is coming from. The situation right now is that these decisions are made without any central accountability. What this section does is give the chief forester the authority referenced in subsection (1). It then recognizes, through subsection (2), that the authority will be exercised through officials, as is now the case. By doing so, it creates in the office of the chief forester a form of accountability and an ability to maintain consistency throughout the system. So it's an attempt to enhance the accountability and consistency of the system that currently exists by formally reposing in the chief forester the authority that is referenced in subsection (1), and formally recognizing that the chief forester will have to exercise that authority with some flexibility under subsection (2). By doing this, the discretionary exercise of authority will be recognized in a more formal way, and the lines of accountability through the chief forester will be clearer. We are convinced that by doing so we will increase both accountability and consistency throughout the system.
G. Wilson: So where it says "delegate a matter to a person" or "confer discretion on a person," that implies that we're dealing with an official of the ministry. Is that what the minister has just finished saying?
Hon. A. Petter: In the great preponderance of cases, it will be officials within the ministry. There may be circumstances -- for example, when you have a professional forester preparing some aspect of planning on behalf of a licensee -- where the chief forester might say that the determination of an independent professional forester will suffice in satisfying a particular standard around roadbuilding or whatever. For the most part, what's contemplated here are decisions by ministry officials, but because there may be circumstances where the chief forester wants to repose in an independent engineer or professional forester some authority, it is left more flexible and more open than ministry officials.
G. Wilson: I have two questions that follow out of that. Section 8(1) says: "If authorized by the regulations and in accordance with the regulations, the chief forester may establish, vary or cancel standards...." So it's discretionary in that sense with the chief forester. Presumably, if this is occurring, there is some prospect for the licence holder to have input into that decision. I don't see in this particular section where that may be, although I gather that in the final analysis, when a management plan is approved, there may be some provision in sections 10 through 16, in the operational planning requirements.
Having said that, the second group that clearly may want to have some input into it is the public. The public may have or deem to have an interest in a particular standard affected by regulation. Subsection (5) says: "The regional manager must make the standard available to the public in accordance with the regulations." I've looked through the draft regulations on this question, and I fail to see where that public process is accounted for. I wonder if the minister could tell us what the licensee may have available to them with respect to these changes as they may occur and to what extent that process is covered off by the public in advance of those decisions being taken.
Hon. A. Petter: The nature of the input from licensees and others will depend upon the nature of the standard. For example, we as a government have engaged in a very extensive public process on the Forest Practices Code itself. We are about to continue that process with the release of the "Standards" document. That "Standards" document will culminate in regulations that, for example, will authorize the chief forester to set cutblock sizes in parts of the province. Licensees will have had an opportunity to participate in that process, as they have already, but they'll continue to do so until that regulation is set. As a matter of practice in those overarching kinds of issues, we have demonstrated -- and I assume future governments would do so as well -- that it's only responsible to provide a public process for input by licensees.
If you get into some of the more detailed kinds of operational standards on the ground, then there are different opportunities at various stages of the process in which licence holders can have input. Throughout the act, you'll find there are provisions requiring gazetting of proposed standards and input from licensees with respect to the provincewide standards currently being contemplated. There is currently a very extensive process of public consultation, which Dr. Baskerville of UBC is heading up. So the degree and nature of input will vary, but certainly this contemplates that such input will take place.
W. Hurd: I think this is an exceedingly important section of the bill, and it's a recognition that some of the standards that currently apply may not work. If my interpretation of this section is correct, the chief forester has the power under this section to vary them or cancel them where the need dictates.
I just want to clarify a point raised by the member for Powell River-Sunshine Coast. When we talk about standards in this particular section, I assume we're talking about the "Standards" document that the ministry has provided. If we are, the minister will be aware that under the administration section of this document, it says:
"Exemptions or variances to a regulation or standard may be approved by the district manager only where provided for in the regulation or standard for specific circumstances. Justification for variances must be recorded in the appropriate documents and, where applicable, the appropriate resource agencies must be consulted."
That is what's called for in the "Standards" document.
I just wonder if the minister could clarify whether or not that same provision in the "Standards" document applies to section 8 of this particular bill, where it appears that authorization has been given to the chief forester to decide if a standard isn't working and needs to be amended, altered or cancelled. Could the minister advise the committee whether there is a problem between the code standards that have been released in discussion form, which and call for consultation with the appropriate review agency, and what appears to be the case in this section, where the chief forester has the unilateral ability to make an order in the field that a standard needs to be varied or isn't working?
[5:30]
Hon. A. Petter: If I understand the member, I think he may be confusing two things. One is discretion that may
[ Page 12634 ]
exist within a standard to allow variability, so that a standard may create a presumption in favour of a particular practice, for example, but allow a licence holder to deviate from that practice where the licence holder can demonstrate some justifiable reason or approach for doing so. That is part of the standard. Discretion is afforded in various parts of the act and regulations to enable assessments to be made as to whether or not the departure from the pre-determined standard is appropriate. That departure is itself part of the standard. That is distinct from the creation of the initial standard itself, with or without the capacity to vary, which must go through a public process.
The member might want to make reference to the Forest Practices Code draft regulations which were released. Section 7 of those draft regulations makes it very clear. This will be relevant to the member for Powell River-Sunshine Coast as well.
"Before establishing, varying or cancelling a standard under section 8 of the Act, the chief forester must publish in the Gazette a notice stating (a) that a standard is proposed..." --
and I'm shortening the quote a little for the sake of time --
"(b) that a copy of the proposed standard is available at the regional office and district office...and (c) the date the proposed standard takes effect."
There is provision for public notice and input in the standard itself, and the standard, once created, may, in turn, provide for some discretion to be made as to how it's applied and the way in which it's applied. There's nothing inconsistent about those two notions.
W. Hurd: I'll try and ask a simple question. The ministry has released a copy of the Forest Practices Code standards. When we talk about the definition of standards under section 8, are we talking about the ability of the chief forester to amend or change the standards in this particular document? Is that specifically what we're dealing with?
Hon. A. Petter: Yes, once the standards that are proposed in that document have gone through a public consultation process and are finalized, they will culminate in regulations that will require the chief forester to establish standards. If a subsequent process resulted in some reason to amend those regulations, then those regulations could be amended as well, all under the provisions of section 8.
W. Hurd: So, as I suspected, section 8 is significant. It clearly mandates the chief forester to change the standards. If I'm looking at the section correctly, he may cancel or vary a standard that must be met. Just so I have that clarification, once the process is completed and this discussion document appears in the form of regulations, those regulations in turn can be varied by the chief forester in the field, or he has to go through the process of advertising. I am trying to get clarification, because the confusion arises from the fact that this is a discussion document only and will not, I assume, have the force of law for at least six months.
Hon. A. Petter: While some of the proposed standards and other documents provide a context, I would discourage getting into a debate on those, because we will stray too far from the act itself. Subsection 8(1) makes it clear that variations can only take place if they are authorized by and are in accordance with regulations. The chief forester does not have the power in and of himself to make changes unless he is authorized to do so by the regulations, and in accordance with the regulations.
G. Wilson: The reason I raised this question on subsections 8(1) and (2) is in response.... I am sure the minister is aware -- although many British Columbians may not be -- of the significance of the change of these standards. If one looks at the Saunders report in terms of the costs of implementing this code, for example, one of the things they talk about is the cost of the move from the current standards of the code, an estimated $31 million to $57 million. This is a lot of money. This is not going to be fairly simple.
In going through the Saunders report, it is interesting that one of the things that it makes clear reference to is that shifting standards incur greater costs, so you have to be right the first time, and the less you have that changed the better. Yet it seems that we are setting up a situation where, with very little direct input, the chief forester can be empowered to delegate to a person of the chief forester's preference the authority to be able to establish these changing standards which are going to have potentially significant costs to the licence holder, to be sure, and even potentially to the government in the long-term, as the Saunders report points out.
I wonder why there isn't a provision in section 8 for a review or appeal or some kind of a standardization process that would look at the issue of cost prior to that decision being taken. Or is the minister confident that it's somewhere else in the act? If so, maybe he could point me to where that would be.
Hon. A. Petter: I think, again, one has to recognize where we are coming from. We are coming from a situation in which standards have not been articulated in a way that can be formalized and grappled with. I think this has to be seen as a step forward.
Secondly, to the extent that any official in government should be given the authority to vary standards, in my view it is appropriately the chief forester, who clearly has the greatest understanding. His ultimate responsibility is for the full range of issues that the member and others have raised.
Thirdly, the variations can only be brought about if they are authorized by regulations.
More important than all of that, I think we have to view this realistically within the context of a real political environment. The real political environment is that the changes that are being brought about through the discussion papers that members have referred to have involved extensive public input for the very reason the member suggests.
There are concerns about the costs of both acting and not acting. The Saunders report, ironically, points out that a lot of the costs referenced in that report are just living up to current standards that aren't being enforced. In fact, the bulk of them are.
There is a sensitivity around standards, but I'm not sure there is any way to guard against that in legislation. The guarding against that is good public policy and practice. That is why this government has insisted that we have a full public process in which licence holders and the public are invited to consider the respective costs. Some of the studies released along with Saunders's suggested some of the other costs and benefits that would accrue from changes that are being proposed, and some of the costs of not proceeding.
[ Page 12635 ]
The answer to the hon. member is that it seems to me that the official who is designated here is the appropriate official. The process is one that is circumscribed in an appropriate way. That political process must ultimately bear responsibility for ensuring that the costs are reasonable in terms of licence holders and that the changes are ones that are necessary and manageable in terms of the resource. That certainly has been, in my view, what this government has aspired to do and has done in the very deliberate way we have gone about sharing with the public and the licence holders our proposals on changes to the forest practices legislation of this province and the standards which are now being shared for further consultation.
G. Wilson: This is my last question on this. I really don't recall, and I probably should.... Saunders talks about the so-called red-flag standards on these designations and the designation under the code of a whole series of different zones. One is community watersheds, and the other is riparian areas with respect to streams. Given that there may be a direct community interest with respect to watershed protection, will those zones be treated in a manner equal to others in terms of the chief forester's designation, or is there a separate designation for those riparian and watershed zones, as alluded to in this code?
Hon. A. Petter: There is certainly no intention of having first-class standards and second-class standards. The standards will apply. The two issues the member mentions -- riparian zones and community watersheds -- are ones that are very central in the proposals that have been shared with the public. Those will culminate in standards that will protect the areas contiguous to streams and waterways, and they will culminate in standards that will ensure better protection of community watersheds. The public is being invited to have input into that process, and the result will be the creation of standards that will be promulgated through the act, particularly section 8, and will therefore have the same status as other standards.
It's relevant perhaps to the member's first question, when he asked about the fact that the chief forester may do one or more of the following: make different standards for different persons, places, things or transactions. Well, community watersheds and riparian zones are examples of why you would want different standards, because the peculiarities of each of those circumstances require special attention to other values: the value of domestic water supplies in one case, and the value of wildlife habitat and the streams themselves as habitat in the other.
C. Serwa: Hon. Chair, is it appropriate to introduce an amendment, section 8.1, at this time?
The Chair: Yes, hon. member.
C. Serwa: I would like to propose a section 8.1. The purpose of this amendment is the recognition that a great deal of the concern of the forest industry is because of what appears to be an increasing amount of red tape involved in the Forest Practices Code. The amendment I propose is:
[SECTION 8.1, by adding the following section: Service Delivery Standards 8.1 The minister must develop service delivery standards which ensure timely, equitable and fair service by the Ministry of Forests of all applicants, including enhanced service levels for those who meet specified levels of outstanding compliance with the Code.]
What we're trying to do with this particular amendment is provide a carrot incentive rather than the big stick. It seems appropriate to me that if the expectations of the ministry and the minister is that certain higher standards of performance be met -- by the licensees, in this particular case -- it's fair to assume that a turnabout with a higher standard of performance in servicing the applications of the licensees be attended to, and those with a high record of compliance with the ministry should receive a higher standard of service performance from ministry officials. That is the purpose of the amendment, and hopefully the minister finds it a favourable amendment and will sincerely consider using this carrot approach as a means of encouraging compliance.
[5:45]
On the amendment.
Hon. A. Petter: While I understand the spirit of the proposed amendment, I'd say, first of all, that I assume this deals with operational issues and operational planning and decisions which really aren't within the scope of this part at all. This part deals with strategic planning. If the amendment were to find a place anywhere, and I frankly think it's redundant and unnecessary, I would suggest that it would be more appropriately addressed within the scope of operational planning, which is part 3, and does not fall within the scope of part 2, which deals with strategic planning and doesn't include operational issues of this kind.
Amendment negatived.
Section 8 approved.
On section 9.
W. Hurd: A quick question with respect to section 9, which may appear innocuous on the surface but which I think may have the effect of forcing all the existing management plans to be updated, because it clearly states that where there's a clash between existing management plans and the more stringent objectives, the more stringent objective shall prevail. Can the minister tell us whether he expects that just about every plan currently on file with the Ministry of Forests will be required to be updated under this section in order to ensure compliance with the new code and regulations? Is that the intent, or is that going to be the effect of this section?
Clearly when the concerns of licensees in the forest sector are articulated, the currency of their management plans is one of the big issues that is raised. This section would have implications with the Ministry of Forests as well because of the cutblock and management planning that would be done in conjunction with the small business enterprise program. I wonder if the minister could just comment on the intent of this section and whether he expects that just about every management and working plan in the province is going to be captured by the requirement that the more stringent objective apply where there appears to be a clash between the management plan and the existing one and the one that might be required under the provisions of the standards or the act.
Hon. A. Petter: The short answer is that I'm aware of this concern, but the concern is misplaced. The section does not require any immediate change in management
[ Page 12636 ]
plans. It may require some changes in practices in accordance with the more stringent requirement, but the management plans do not require alteration until they come to their anniversary dates, in which case they'll be brought into conformity as a matter of course. It's simply a misconstruction of the section to assume that any amendment to the management plan is contemplated or required.
W. Hurd: The minister has acknowledged, however, that when the existing plans come up for renewal, which I assume would be on an annual basis -- although I understand there are five-year development plans for tree farm licences -- if they are in noncompliance with the act, its regulations, standards or objectives, the more stringent specification will prevail. The minister is confirming, in essence, that on the anniversary date of the plans on file with the ministry, many, if not all, of them will be in significant non-compliance with the act. Whether or not the harvesting plans in conjunction with the plans on file are actually taking place, and whether any harvesting is in fact taking place, this act clearly talks about the requirement for the plans on file. What I hear the minister saying is that this section would in fact capture those plans when they reach their maturation date with the ministry.
Hon. A. Petter: I think the member is confusing management plans with operational plans. The management plan is not an operational plan that is renewed every year. Management plans are longer-term, higher-level plans provided for under the Forest Act. Renewal every five years is the norm, I understand.
G. Wilson: If there ever was a section that demonstrates why we should have debated the preamble first -- not last -- this is it. The management plan, as it is talked about here, is quite different from the operational plans that we will get into in the next sections, which are equally important. These management plans talk about objectives, specifications and measures in management that differ from this act.
The intent of this act, in terms of its philosophical direction, is spelled out in a preamble we haven't yet debated. Notwithstanding this member and others in the opposition who wanted to debate it first, we weren't given that opportunity.
Interjection.
G. Wilson: The minister reminds me of the standing orders. Fair enough. However, the will of this House can do what its members want, and it's unfortunate that the minister didn't see the wisdom of it.
The concern we have with this is that with respect to these plans, the minister will realize that many hundreds of these plans are going to be affected. In fact, I'm told that roughly 700 tenures are going to be affected by this particular section, and all of them will have to meet what are considered to be the more stringent objectives.
We're not talking about specified requirement by regulation or about measures that are specified or that can in fact be determined; we're talking about objectives. Clearly the specifications and the measurement of how we're going to meet those objectives will differ substantially between activities in the interior and those on the coast, and between companies that have had extensive revisions to existing management plans and those that have not. This planning process is going to be expensive for companies for a wide variety of reasons. I'm not suggesting -- and I don't believe the companies are suggesting -- that they shouldn't put in place a proper five-year plan. I'm not suggesting that they shouldn't look at the overall objectives for a sound Forest Practices Code; they should.
But I think one of the things we have to recognize is that every time these plans are amended -- every time we have to put in place the new proposition for those amendments, even though they're on a five-year basis -- recognizing that the tenure may alter, that the ability to get in and cut may change and that the time in which cutting plans might be operational may change, it costs money. This minister has to recognize that upon the anniversary date, or when this is given proclamation, an awful lot of management plans will not comply and, in the first instance, will have to be reviewed. That's a dollar figure.
So in looking at this section 9, I wonder if the minister can tell us how much he believes that is likely to cost -- if a cost analysis has been done. When you read the Saunders report and the overall cost for implementation, it's interesting to see just exactly what kind of hidden cost there may be with respect to this act.
Hon. A. Petter: I'm somewhat perplexed. It seems to me that a forest practices code would not be particularly effective if it did not require tenure holders -- particularly holders of area-based tenures, along with others -- to come into compliance with the code. I don't think it's a surprise. In fact, it would be much more of a surprise if it were not the case that those who hold area-based tenures and have to file management plans -- say, TFL holders -- would have to make sure that the objectives set out in those plans are brought into accordance with the code. It would be a pretty weak, toothless code that didn't require that.
This section really is designed to recognize that when you hold an area-based tenure, one of the responsibilities is to produce a management plan. Some requirements of that plan may go beyond the Forest Practices Code to make clear that where those requirements go beyond the minimal requirements of the Forest Practices Code, one cannot argue that they need not be met for that reason. Where a TFL holder agrees to a management requirement that is sensitive to the area being managed and may go beyond a requirement of the code, then that management plan will govern to the extent that it goes beyond the area of the code.
Again, it would be most unfortunate if the code lowered the level of expectation. This section makes clear that the code isn't designed to do that; it's designed to provide a general measurement of expectation, but one that is not designed to minimize the standards and objectives set out in management plans.
G. Wilson: I don't argue with what the minister is saying. I tried to make that clear. If I didn't, let me make it clear now. I don't think anybody objects to making sure that the code is consistently applied and develops a higher and better standard for forest practices; that's what it's all about. The problem is that these management plans are supposed to reflect the process towards sustainable use that is included in the preamble. So you're going to be asking them to introduce management plans that talk
[ Page 12637 ]
about balancing productive, spiritual, ecological and recreational values of forests to meet the economic and cultural needs of peoples in communities. This is a very difficult thing to do. We wanted to debate the preamble first so that we could have a clear understanding of what exactly is intended. You're going to be looking for the conservation of biological diversity -- soil, water, fish, wildlife, and scenic diversity and so on -- in your management plans now, because they're going to be....
Interjection.
G. Wilson: The minister is shaking his head. That's clearly what you're going to be looking for in a management plan, because if you don't have it in the management plan, then I would assume that you're not going to grant licences for them to go in and involve themselves in the operational planning that we're going to deal with in the next number of sections.
I don't argue with the fact that you need the management plans. The problem is that the general philosophy of what should be in those plans -- the general direction and approach to forest management -- seems to be fairly nebulous in terms of the manner that it is spelled out in the preamble to this act. That's what our concern is. In our judgment, there should have been a much more specific, detailed and scientifically based preamble that gives some very clear guidelines and parameters as to what should and should not be included in those management plans. That's our comment on that point. It wasn't so much a question to the minister, but he may want to respond.
Section 9 approved on division.
Hon. A. Petter: Given the time and the appetite -- not necessarily to continue -- I would move the committee rise, report progress and ask leave to sit again.
Motion approved.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. E. Cull: I move that the House at its rising recess until 6:35 this evening.
Motion approved.
The House recessed at 5:59 p.m.
The House resumed at 6:37 p.m.
[The Speaker in the chair.]
Hon. G. Clark: Just so that we have a complete agenda for members, in a second I'll be calling Bill 25, and then at 8:15 p.m. we'll return to the Forest Practices Code debate. With that notice, I call committee stage on Bill 25.
MUNICIPAL AFFAIRS STATUTES AMENDMENT ACT, 1994
The House in committee on Bill 25; M. Farnworth in the chair.
Sections 1 to 15 inclusive approved.
On section 16.
C. Tanner: I have a fairly straightforward question. Could the minister tell us what the limit is now, or will there be no limit?
Hon. D. Marzari: There is no limit, and we are proceeding on the assumption that this should be a local decision. This parallels the Municipal Act.
Sections 16 to 31 inclusive approved.
On section 32.
C. Tanner: I wonder whether the minister could give us a preamble to these amendments to the Islands Trust Act, regarding their motivation, how long they have been in abeyance, and their consequences from her point of view.
Hon. D. Marzari: Basically, these amendments enable the Islands Trust council to enter into agreements respecting the coordination of activities in the whole Trust area with other government bodies -- that is, the federal government, the province, any agent of the same, local governments and school boards. It provides for making such agreements binding on local trust councils. Section 8(2)(a) currently authorizes the Trust council to enter into agreements respecting coordination of administrative activities in the Trust area only with the province and agents of the province. Basically, what we're talking about here is helping the Trust grow into its boots a bit by expanding the number of bodies it will be able to make agreements and binding contracts with.
G. Wilson: The obvious follow-up question to that is: why do they need these powers? Can the minister give us some specific examples of the kind of agreements they can enter into?
I have a great deal of respect for the Islands Trust and am very supportive of it. But whenever these kinds of powers are granted to an agency of government at that level, it can often be a two-edged sword. Notwithstanding the democratic process of election, the Trust is empowered to look after wide areas of the lower Georgia Strait region. To have these kinds of powers, without some provision for the province to override, may be seen not to be in the interests of the province as a whole. Notwithstanding the respect I have for the Trust, I wonder if the minister might give us a little more detail.
Hon. D. Marzari: The most recent example of where the Trust needed to be able to spread its wings and behave like a mature level of government was when the federal Department of Communications wanted to talk to the Trust as the official governance of the islands on rebroadcasting locations. For another example, the Trust recently entered into an agreement with the Ministry of Transportation and Highways regarding road standards and entering into new agreements about what road
[ Page 12638 ]
standards should look like on the islands -- standards that are different than those we experience on Vancouver Island or on the mainland. This is all part and parcel of the reason for the Trust in the first place: to be able to make unique arrangements and to be able to create, from the values of people who live on the islands, the governance and regulations they desire.
[6:45]
All of these amendments were requested by the Trust council itself, and all of them were deemed to be appropriate from the provincial ministries' point of view, where the provincial ministries are involved. Basically, the Trust wanted the authority to build coordination agreements, binding on the local trust committees to make sure that all islands, by the same token, follow the agreements that are made. Otherwise, the business of doing coordination with whatever agency, whether it be provincial or federal, is lost if each of the trust partners themselves doesn't particularly agree. So this basically gives the Trust itself some authority and maturity to enter into agreements and to encourage those agreements among the partners of the Trust.
C. Serwa: May I have leave to make a brief good-news announcement?
Leave granted.
C. Serwa: Hon. members, on July 3, 1994, at 3:30 p.m., Hansard editor Catherine Lang gave birth to Samuel Arthur Martin, who weighed 6 pounds 4 ounces. I am given to understand that the proud mother stayed right here on the job until 4:30 p.m. on June 30. Will the members of the Legislature please join me in expressing our heartiest heartfelt congratulations.
L. Hanson: A number of sections -- right up to 41, I believe -- seem to give an awful lot more authority to the Islands Trust to enter into various agreements that were not under their jurisdiction in the past. Has the minister had any communication with the regional districts and municipalities involved as to their opinion on this extension?
Hon. D. Marzari: Because the nature of the amendment has to do with the ability to enter into agreements with various other agencies, obviously those agreements have to be mutual, or there simply wouldn't be a basis for discussion. Also, since the nature of the agreements that will be entered into will be integral to the Trust itself and inside the Trust itself, the business of working through some kind of larger mandate or authority with regional districts doesn't seem to be paramount here. Certainly we have not made those contacts with the regional districts. I am assuming that the Islands Trust has done so, where appropriate.
G. Wilson: I notice that within this section, the minister still has the power to override. Notwithstanding that the Islands Trust has been given expanded powers, the subject-to clause provides the minister the right to override any agreements under subsection (1).
Something that is of concern, however, is subsection (3), and I wonder if the minister might comment on it. I have travelled to as many of the islands as I can get to, and I understand that often local trust committees are anxious to put in place, within each of the areas over which they have jurisdiction, specific bylaws, and regulations that will often accompany such bylaws, with respect to meeting the needs, issues and concerns that most directly affect the lives of the people on that island. This provision says that if the Trust itself enters into an agreement in a manner that conflicts with a local bylaw or a bylaw of a local trust committee, the authority of that local trust committee to continue to enforce that bylaw is overridden by the larger agreement. That causes some concern, because the nature of the Trust, as I understand it -- having met with them and discussed their issues, and having a great deal of respect for this organization -- is such that there will likely be areas of disagreement on some key issues with respect to development on islands. Yet clearly the Trust will now be empowered to enter into an agreement with the province or the federal government, municipalities and regional districts which will bind all trust committees. There must be a provision to have those bylaws protected and for local autonomy to prevail where bylaws have been enacted in good faith and where people have gone through public processes for the enactment of those bylaws, not simply an agreement by what might be seen as a superior level of government to override those bylaws by virtue of subsection (3).
Hon. D. Marzari: The fact is that the Trust is obviously made up of representatives of the various islands. In fact, the governance structure on the islands, although it's -- as I've called it -- fragile, does bring to the Trust strong representation from each partner in the Trust. Therefore we're not talking about a mammoth superbody that inflicts agreements and rules upon the partners without good, solid consultation. In fact, the provision here is to make sure that all the islands do follow agreements that are made; otherwise we simply don't have any ties that bind or coordinate the activities that are carried on.
The important thing is that the members of the Trust are in fact representatives from the islands. Therefore the provisions that we place into the act -- asked for by the Trust itself and agreed to by the representatives from the islands -- see the need to do the balancing act that needs to be done if we're going to have larger agreements between the consenting islands.
G. Wilson: I don't take issue with what the minister said. I understand that it is a balancing act and that the Islands Trust is a rather different kind of local government construct -- and a necessary one. If we're to protect the integrity of each of the islands in the lower Georgia Strait area, then clearly we're going to need that flexibility. The problem, though, is that if you look at what subsection (3) says and read it in combination with section 35, which we're about to get to, we can see that this bill now empowers the Islands Trust council to become a larger entity in terms of the powers that it may have over local trust councils.
I can see in many instances where that may be desirable, but I can also see where local trust councils may feel that their autonomy in dealing with critical issues on their island may be compromised. Yet there's nothing in here that allows those local trust councils any kind of power to protect local bylaws if that isn't seen to be in the interests of the larger council. I think that's a concern, because it's not unlike what happens in regional districts. For example, you'll have district area representatives at the table who may feel that without their votes being weighted, their interests are not protected. In that instance, directors from those regional district areas will
[ Page 12639 ]
have the right to simply not join a function. It may apply to areas A through E, let's say, but area F in this instance is not going to opt in. I don't know that there is any provision in the Trust to provide for that. If there is, could the minister point to where it is?
Hon. D. Marzari: The safeguards here -- if we're looking for safeguards -- have to do with the approval of the minister, which is outlined under the new section 8.1(2). Also, the procedures that the member is looking for in section 9.1 don't relate to what we're dealing with here in 8.1(3). We're not talking about the ability of the Trust to undo bylaws of the local committee or of the local representatives. The areas of conflict are very scarce. The agreements section of these amendments and the bylaw section are separate and distinct, and I think the member's concern that bylaws might be overridden simply isn't supported by these amendments; otherwise we wouldn't have been asked to put them forward by the Trust itself and by the members of the Trust.
The Chair: Shall section 32 pass? I say section 32, because I've heard it mentioned a number of times that we're debating section 33. I would call members' attention to the fact that we are on section 32, not section 33.
G. Wilson: In order to adequately debate this, hon. Chair, I really believe we have to debate section 32 through to the end of section 35 as one issue. But if you want to do them one section at a time, we'll do it that way.
Section 32 approved.
On section 33.
C. Tanner: I'm in the same area that the member for Powell River-Sunshine Coast is concerned about, except he sort of jumped the gun on me. I think I can put his queries into one suggestion: if the new section 8.1 said "upon the request of a local Trust committee," it would solve some problems. It doesn't say that. It seems that an arbitrary authority is given to the Trust council, which is not necessarily precipitated by an individual trust committee on any island. That is a concern of mine, too: the fact that when the Trust council meets, later in section 35, or two-thirds of its members are present, they can make a decision that would affect a particular island without a particular island's trustees having any input into the decision.
Hon. D. Marzari: The agreements that we're talking about the Trust entering into are not of a substantial nature that would threaten the individual islands. We have to remember once again that the nature of the Islands Trust is in fact islanders who come together voluntarily and fight for the Islands Trust and fight for the vision of the Islands Trust to make agreements.
What they're asking for here is something that makes life easier for all of them, or they wouldn't be requesting legislation to give them this power to make agreements with agencies other than the province. We are not talking about a mammoth scope here in terms of their ability; we're talking about a highly circumscribed scope, in fact. This request has been put forward by a constituent assembly -- basically the closest we'll ever come to a constituent assembly -- and I must say that I respect the efforts and the thought that have been put into their requests for amendments to their act, which in my mind and in their minds gives them an additional scope and an additional maturity with the concurrence of their constituent members.
G. Wilson: I don't take issue with the fact that it comes from a constituent assembly. I've had wide discussions with the Islands Trust, and I'm sure the minister will have had more. Our job as opposition is to make sure that when these bills come forward, we are looking at the wording and language as it not only applies to the situation today but how it may evolve and therefore affect future islands.
I'll just ask two very specific questions that might answer my concerns. Point 1. Section 8.1(1) says: "For the purpose of carrying out the object of the trust, the trust council may enter into, on its own behalf or on behalf of one or more local trust committees, agreements with one or more of the following respecting the coordination of activities...." I think this is what the member for Saanich North and the Islands was just asking, and I'm not sure the minister answered it clearly. The concern is: can the Trust council act on behalf of a trust committee that has not requested it to do so?
[7:00]
Point 2. Subsection (3) clearly says: "If there is a conflict between an agreement under subsection (1) and a bylaw or agreement of a local trust committee, the agreement under subsection (1) prevails." That means the local island bylaws are overridden by such an agreement. Our concern is: can it be done in the absence of an agreement of the local trust committee? If the answer is no, then I'm satisfied.
Hon. D. Marzari: The answer is not no; in fact, the answer is yes. I come back to the point that it is a constituent group and that obviously there has to be agreement -- discussion and buy-in -- around the Trust table itself. You are aware, as I am, that the Trust is not a body that's going to run away with a mandate or overturn bylaw decisions of its constituent members. Neither can I envisage it, given the structure it has. I daresay, as I've said before, we have here simply an ability to enter into limited agreements with agencies other than the province, with a safeguard in the minister's approval. I must reiterate once again that the Trust itself asked for this.
G. Wilson: A provision within the Municipal Act that governs regional districts -- and I wonder if this was discussed or in any way considered by the minister when drafting this -- allows for an area director, under the advisement of a local area planning committee, to opt out of functions that the regional district may enter into and therefore not be a participant, if they request to step out. The regional district may pass bylaws, but those may exempt certain areas that don't wish to buy in because of the cost implications -- taxes, mostly -- for the local residents. I wonder if that has been discussed or considered in this act.
Hon. D. Marzari: There has been discussion, but not in the context of this act. In this act we're dealing basically with the function of the Trust as it relates to land use. Consequently, unless the matter being dealt with by the regional district deals with a land use issue, there is no compulsion on the Islands Trust member to necessarily buy in at this juncture.
[ Page 12640 ]
D. Mitchell: Just a brief question on this section. I'm trying to imagine an example where this might come into play, and I'm trying to imagine the mechanics of how it could work. If Bowen Island, for instance, which is one of the Trust communities in the constituency I represent, was to enter into an agreement with, let's say, the Greater Vancouver Regional District.... Or if the Islands Trust was to enter into a coordinated agreement with the Greater Vancouver Regional District but Bowen Island disagreed with that -- if the island's local trust committee was not in accord with that agreement -- would it be the case that Bowen Island, then, would not be able to have any input into such an agreement because the Islands Trust collectively decided that they wanted to enter into the agreement with that regional district? Is that what the minister is saying? Or does she have another example that would make sense of this for me?
Hon. D. Marzari: Once again, the entire Trust council, when it comes together, has to agree with any agreements that are made. Bowen Island would definitely not be in a position to make any major agreements relating to land use without conferring with the Trust council. For example, Bowen's new relationship with the regional district would have to have some reasonable consensus around the Trust table.
The member asked for specific instances. I'll repeat: there is the kind of agreement that has been made or forged with the federal Department of Communications about rebroadcasting sites, and there is the one on road standards, which was an agreement forged with our own Transportation and Highways.
D. Mitchell: I take it that the principle of autonomy of individual islands within the Islands Trust is not being spoken to here; it's really collectively the Islands Trust. Individual islands are not really being given any separate or independent powers.
I would like to ask the minister a question about one of the groups that is not specifically referred to in this section, which is first nations. Is there a reason why first nations are explicitly excluded from this agreement? Or can the minister anticipate a situation whereby an agreement with a first nation, perhaps covered by the B.C. Treaty Commission, might also have an impact here? Why would it be excluded or not referred to explicitly in this section of the bill?
[F. Garden in the chair.]
Hon. D. Marzari: Contact with first nations as another agency or level of government, if you want to put it that way, is not being considered by the Trust, and I thank the member for raising it. It is an issue that I will raise with the Trust in my next discussion with them. I come back to the point that the agreements we are talking about here are Trust-wide agreements; they are not necessarily one-off agreements between individual islands in the Trust with various agencies. We are talking here about Trust-wide arrangements.
Sections 33 and 34 approved.
On section 35.
C. Tanner: I have some problem that the Trust, meeting as the Trust council, by having two-thirds of its members present, can make decisions which influence the whole future working of the council. Is there any reason we need the word "present" there? The reason I ask is that there can be a circumstance where only half the trustees -- 12 of 24 -- are there. In my case, for example, half the trustees live in my constituency. None of my trustees could be there, and they could be making a decision which could affect the greatest portion of the Trust. If you took out the word "present" it would be two-thirds of the members of the Trust council at any one time who could make that decision.
Hon. D. Marzari: If the member wants to play around with the definition of a quorum at any given meeting, I guess he could. It is common practice that you count the people in the room when you take a vote, and it's two-thirds of the people in the room -- and that means present.
C. Tanner: The minister well knows that the Islands Trust council tries to meet four times a year and it usually is successful. Since there are a lot of meetings and most trustees, to my knowledge.... Incidentally, not one of the 12 trustees in my constituency has any objections to any of this legislation. In fact, I haven't heard from any of the trustees. My point is that this is an important power we are giving to the council, and it can be made by a minimum number of trustees present. If you took out the word "present," they could make a decision as long as two-thirds of the trustees were present....
Hon. D. Marzari: This is the standard form for bylaws. It's the form by which the Trust itself has chosen to live, and it is not out of keeping with any definitions that we have of what a quorum should look like. I don't imagine the member is talking about phone-in votes; that wouldn't be appropriate. Since the Trust itself is ready to live with this -- in fact, it asked for it -- I do not see why, procedurally, two-thirds of its members shouldn't be present at a meeting where a vote on adoption takes place. If there's disagreement with any vote, as in any other form of municipal government, the council can reverse a decision simply by putting forward a rescinding motion. This is possible too, procedurally, in the Islands Trust. So I hope that would take care of the issue.
C. Tanner: I can't find anywhere in the Trust legislation a compulsion upon an individual island's council meeting -- in all cases, two trustees -- that they have to keep minutes. That is of concern to me. Unless it is under regulations that I'm not familiar with, when we're talking about procedures on all islands across the Islands Trust, I think there should be some obligation to keep minutes at those meetings.
Hon. D. Marzari: I'm happy to report to the member that under the procedures bylaw, requested by the Trust, there is now a provision for just that. Minutes are now taken on a regular basis -- in fact, on a perpetual and eternal basis. So the member can rest assured that the Trust is bringing itself into accord with common practice.
D. Mitchell: I have just one question I'd like to ask on this section. It deals with the larger issue of the Islands Trust Act. In the last session of this House, when the minister's predecessor brought forward the local government elections act, we had some discussion in
[ Page 12641 ]
committee stage about whether or not the government contemplated a major review of the Islands Trust legislation. He indicated at that time it wasn't contemplated, but that possibly in the next session, which is this session, it would be contemplated. In this act we see a number of small and specific amendments. Some of them are quite important, but it certainly doesn't constitute the major review that some trustees and some local trust councils were contemplating. Clearly that's not the intention of Bill 25, but I wonder if the minister might just take a moment, within the ambit of this act, to briefly address when and if that will be coming forward.
Hon. D. Marzari: At this very moment we are preparing the way for a larger discussion with the Trust that would not just involve the updating of their official community plans and the island plans, but would also take a broader look at the "fragility" -- to use the word I used with respect to the Trust during my estimates debates -- of the Trust. If it is to sustain itself it needs strengthening, broader scope and greater interest on the part of the provincial government in its longevity and sustainability. So yes, we are at this moment preparing the terms of reference for such a review.
D. Mitchell: Is the minister prepared to make a commitment that such a review will be followed by public consultation among all the communities within the Islands Trust before legislation reaches the floor of the Legislature?
Hon. D. Marzari: That's a very easy question to answer. Obviously, the answer is yes.
Section 35 approved.
On section 36.
L. Hanson: I have a simple question for the minister. Is this change simply there to expand the executive committee?
Hon. D. Marzari: To deal with absences and various travel arrangements that are difficult, at the request of the Trust, this increases the number of vice-chairs on the executive above two. That is basically what we're doing.
L. Hanson: I guess if it were the recommendation, every member of the Islands Trust could become a member of the executive committee. I didn't know this was a problem. I've had some experience. If that's the only purpose, there's nothing very harmful in it. Could the minister answer that?
Hon. D. Marzari: At present we apparently have three executive members doing their duties, and that basically means travelling to the islands to form the majority required to make decisions on bylaws. We have only three executive members for 13 member islands, and they are doing that job as well as conducting themselves as an executive.
[7:15]
Could all members of the Trust become senior vice-presidents? No. Under the act they probably could, but we have to look at the budget for the Trust, which is certainly not a splendid budget; it is barely adequate. The costs of remuneration and the expenses of the vice-chairs as they go about helping their colleagues and their neighbours solve problems would have to be covered by the Trust's annual budget. So I do not think you're looking at a runaway level of government here.
Section 36 approved.
On section 37.
C. Tanner: I have a problem with this section, and I'd like to hear the minister's explanation. It appears to me as if section 22(2)(a) and 22(2)(b) are different from section 22(2)(c), in that if you substitute the word "shall" for "may" in 22(2), it would work with (a) and (b), but if you do it with (c), it doesn't make any sense. In my view, it should be a compulsion upon the councils to conform to section 26. It shouldn't be optional; they should have to. Can the minister say why we're using the word "may" instead of "shall" there?
Hon. D. Marzari: In the local government world apparently "may" is the standard word used. In fact "shall" does not become part of the municipal vocabulary -- or for the Trust either. What we're doing is basically leaving an option open and doing enabling and facilitating legislation rather than doing compulsory consultations or acts.
C. Tanner: I'm sorry, but I have some trouble with that. I see the word "shall" in section 36(1), so the explanation that it's not the word we normally use isn't matched by the words in the legislation that we have here now. My criticism of this section is that it seems to me that it should be compulsory for the trust councils to obey the bylaws. As it reads here, they "may" obey the bylaws; there seems to be some choice. I don't think that choice should exist -- unless I'm reading the entire section incorrectly.
Hon. D. Marzari: Subsection (c) is the only new subsection; subsections (a) and (b) are current practice. Subsection (c) enables local trust committees to coordinate more fully with other local governments on matters pertaining to particular islands by authorizing those islands to enter into protocol agreements. Consequently it's an enabling clause. Subsection (c) is simply an expansion of an already existing section. As I say, it's a facilitating clause. It doesn't force the Trust or the Trust partners to enter into agreements; it simply says that they may, which is something that the Trust partners are in agreement with.
Sections 37 to 41 inclusive approved.
On section 42.
G. Wilson: The first item is with respect to the change in the definition of a newspaper. We raised the same objection under a different statute with respect to that change. Right now the definition reads: "'newspaper' means a publication or local periodical that (a) contains items of news and advertising, and (b) is distributed at least weekly in a municipality, regional district or..." It then goes on to give more requirements and provisions for the publication. This removes the need for weekly publication and distribution in the municipality. It expressly changes the definition of a newspaper from one that is locally distributed to one that might be
[ Page 12642 ]
provincewide and may not have wide circulation within a municipality. I don't understand why that needs to be done. If the minister could start out by telling us why it needs to be done, we might go from there.
Hon. D. Marzari: The requirement itself hasn't been eliminated. In the following section, the definition has simply been moved down to the new section 2.1, which is called "Publication of notices." It's been clarified in that section to ensure that notice is given "in a newspaper that is distributed...in the area affected by the subject matter of the notice." So far from being eliminated, the requirement here has basically been strengthened to be more practical for local governments and more effective for those people who are being affected by their local government's decisions. So if the member would read on, I think he would find that his concern is covered there.
G. Wilson: I had a bit of difficulty following the minister there, because the consequential amendment under section 74 -- and I don't mean to jump so far ahead -- strikes out "circulating in the municipality." This says that it changes the definition with respect to the requirement that a publication contain items of news and advertising. According to the consequential amendment of section 74, it simply strikes out "circulating in the municipality," so I'm at a bit of a loss. Could the minister explain that again?
Hon. D. Marzari: I'm not sure what the member is referring to when he talks about an elimination of a whole definition in section 74, when in fact in section 42 and 43 we're building a very concrete and very specific definition of where notifications and notices must be published so as to give full guarantee to municipalities and to citizens who are affected that appropriate notification will be given -- in a much more stringent and highly defined way, in fact, than has been the case thus far.
G. Wilson: I don't necessarily want to get into an argument with the minister here, but if we read what is currently in the act, we see that the repeal of the definition of newspaper takes out "distributed at least weekly in a municipality, regional district or area that is affected by the matter in respect to which a provision of this act requires..." It then says, under section 2.1(2): "The notice may be published in a newspaper that is distributed at least weekly...." So this doesn't strengthen this. It weakens it substantially. If you look at the consequential amendment in this act under section 74, it expressly amends it by striking out "circulating in the municipality." So I don't agree at all that it strengthens it; it weakens it.
Hon. D. Marzari: We can't have a discussion on section 42 without referring to section 43, because we have removed the definition of newspaper from the existing section 42 and moved it down to section 43, section 2.1: "(1) Where notice is required by this Act to be given by publication in a newspaper, the notice must be published in accordance with this section." Following from that, section 2.1(2) covers it by saying: "The notice may be published in a newspaper that is distributed at least weekly (a) in the area affected by the subject matter of the notice...."
G. Wilson: I don't know that we want to belabour this point. We will deal with the question of "may" for a requirement under section 2.1. The concern here is that this act removes the requirement for notice in a local newspaper. It gives discretion to a municipality as to whether or not they will put it into a local newspaper or into a bigger newspaper, which may not have as wide a circulation, and that's the concern. Maybe we can pick that up under section 43 when we get to it.
There are, however, some other definitions under section 42 that I would like to move forward, and I would like to move this amendment without notice. We would add three definitions in the following subsections:
[SECTION 42, by adding (d) "contingency plan" means, for the purpose of section 947 of the Act, a plan which provides for compensation for individuals affected by future commitments of British Columbia, or Canada, another local government or an agency of any of them. This compensation may include a plan to relocate a residence, a business, or an agricultural business, or maybe straight financial compensation.
(e) "compensation" means, for the purpose of section 947 of the Act, an agreement reached to offset real costs and hardship of individuals affected by a commitment of the government of British Columbia, or Canada, another local government or an agent of any of them.
(f) "parameters of a contingency plan" are those guidelines determined in negotiation with property owners affected by a future commitment of the government of British Columbia, or Canada, another local government or an agent of any of them, and the party making the commitment, and includes a market value appraisal of the affected property. It may also include a long-term transitional plan for the moving of a residence or business.]
I will circulate this amendment now.
The Chair: I believe this amendment without notice is under the name of the member for Okanagan East. The wording is virtually the same.
G. Wilson: With one exception, hon. Chair, and that is that the word "future" is deleted in (e).
On the amendment.
Hon. D. Marzari: Section 1 of the Municipal Act defines words used in the Municipal Act that require particular definition to give them meaning as they are used in the act. Neither the phrase "contingency plan" nor the phrase "parameters of a contingency plan" are used in the Municipal Act, therefore they do not require definition in this section. As for the word "compensation," it's a commonly understood word that doesn't require particular definition as it's used in the Municipal Act.
As the member's amendment to this section relates to her proposed amendment to section 106 -- and that is the purpose for these definitions -- I will take this opportunity to advise the committee that the government will be voting against section 106. I will outline that when the section is called. The purposes for which these definitions were created and defined in this amendment are not as pertinent as they might have been when they were drafted. I would recommend that we vote against this amendment.
G. Wilson: I concur that section 106 was directly what those amendments were applicable to. If that is not to pass and these amendments are not to pass, we won't be quite so upset about it.
Amendment negatived.
[ Page 12643 ]
Section 42 approved.
On section 43.
G. Wilson: I wonder if the minister might consider a very friendly amendment and put in subsection (2) that notice "must be published in a newspaper that is distributed at least weekly." That would provide us whatever guarantee we can get that local residents will have a chance to get local information.
[7:30]
Hon. D. Marzari: In section 2.1, "must" is used in subsection (1): "...notice must be published in accordance with this section." So there is no problem about people not receiving the best notice they can possibly be given for votes or actions to be taken or for issues on the table. In section 2.1(2), "The notice may be published in a newspaper," but that doesn't necessarily make it conditional. All it does is refer to the menu in the following subsections as to where the notice might be published. In each of these cases, every possible contingency is imagined and provided for. The idea is to ensure that there is decent notification. The member's concern is warranted, but a careful reading of the "Publication of notices" section should reassure the House that every avenue is being travelled to ensure that people are being given proper notification of local government decision-making.
G. Wilson: Will the minister concur that under section 2.1(4) -- where there is a question with respect to notice that "may be given within the areas referred to in subsection 2(a) and (b)" -- if applications or land use changes or whatever the notification may be concerning are published in a publication such as the Sun or the Province, which may be circulated within the regional district or municipality but not have wide distribution and therefore not be widely available, that would not constitute the kind of newspaper being defined in this act? Essentially we are talking about a local newspaper that is available within the entire regional district. This is a very real concern. I can tell you that in all of my years on local government, one of the main concerns from local residents was that municipalities opted to advertise in the larger papers that may have had a wide circulation in straight numbers, but they did not get door-to-door delivery and therefore were not read by people; people were not feeling adequately notified.
Hon. D. Marzari: I would direct the member's attention to subsection (2)(a): "...in the area affected by the subject matter of the notice...." That becomes the lead item in this whole discourse. Obviously there are variations between communities as to who reads what and when, and depending on circulation, local relevancy and a number of things. Many local governments use community newspapers to publish notices of rezonings and other matters for which they are required to give notice. Others can and do use regional newspapers. Although they may not be published in the community, they are distributed and read in the entire community. In some areas there are no community or locally published newspapers at all. So long as the notice is published in a newspaper that is distributed "in the area affected by the subject matter of the notice...." Both these types of newspapers meet the statutory requirement we are talking about and the purpose of the publication requirement, which is to provide notice. The spirit of those words must prevail. It is the spirit of those words which guarantees to the citizens that they are going to be given appropriate notice by the local government.
Sections 43 to 56 inclusive approved.
On section 57.
L. Hanson: Section 57(b) amends section 63 by adding subsection (9): "Before receiving a list of registered electors, a person referred to in subsection (8) must sign a statement that the person will not inspect the document or use the information in it except for the purposes of this Part." The last part I understand, but why the "not inspect"? How does that apply?
Hon. D. Marzari: This section comes out of a freedom-of-information and protection-of-privacy concern.
L. Hanson: That may well be, but it would seem to say that the person has to sign a statement before he can look at the voters list. I guess it would say that he doesn't get the voters list until he signs a statement, but I don't get the "inspect" part.
Hon. D. Marzari: It's a drafting situation, where it is simply making clear that the individual is not to use the information except for purposes of the election itself.
L. Hanson: I know it's going to be a long night, so I'm not going to spend a long time on this section. I suppose that the section is there because of a concern that the voters list is used for something other than election purposes. I still don't understand why there is a prohibition of inspection, even though the inspection may be for the prescribed purposes.
Hon. D. Marzari: The member will notice that there is no prohibition of inspection itself. There is simply a suggestion that the voters list would not be used for purposes other than for the election.
G. Wilson: Just by way of a quick comment, subsection (10) is interesting also. It says: "The chief election officer may amend a list of registered electors that is to be provided under subsection (8), or that is to be available for public inspection, by omitting or obscuring the address of an elector or other information about an elector in order to protect the privacy or security of the elector." I can understand how that might be necessary in some circumstances. But how are you going to check on the authenticity of a list of names if you don't have some address or some way of determining where they are, especially under the amendments of this act, which deals with non-resident electors and residential electors?
Hon. D. Marzari: I believe this section was brought in initially to be an anti-harassment provision, instigated and requested by individuals who fear that the revealing of their address would create personal harm and damage. In the larger picture, I imagine it would have to do with the individual's right to object against privacy provisions that individuals might want to bring forward. That is the purpose of this section. It does give the chief electoral officer the power to amend the list of registered electors in that way.
[ Page 12644 ]
G. Wilson: Can the minister tell us, then, what good is...? If somebody wishes to check the authenticity of a voters list, what use is that list if there are no addresses that you can check the names against? All you've got is a list of names. They could be anybody from anywhere; there is no way to check its authenticity.
The minister will be aware that in recent elections in a number of municipalities, people were deemed eligible to vote who perhaps did not qualify. It is clearly in the interests of those people who are standing for office to have an accurate list that can be checked against. In the event that there is some kind of appeal, they should have access to those lists of names and addresses. It's a public document. The voters list is not something that somebody subscribes to voluntarily and therefore has some right to prohibit their name from publication on. They might voluntarily exclude themselves, but they don't subscribe to it voluntarily.
Hon. D. Marzari: This is not obliterating people's records from the public record. Registration cards can still be accessed and viewed. I believe the privacy recommendations and the anti-harassment considerations that were brought forward when this was being considered have something to do with what a chief electoral officer might do. This is not a section that is intended to be used on a regular basis; it is a section that I would assume would be used by the chief electoral officer on the request of an individual who fears harassment or who fears that the publication of their name on a voters list for public consumption would be harmful to them.
C. Tanner: I looked at this section, and I came to the conclusion that it would be futile to argue with the minister on it for the simple reason that she's got enough members over there to override what I object to. I think it's a futile attempt to give people some sort of privacy. In actual fact, in any municipality you want to walk into, you can check the assessment roll and get a whole list of names that includes the valuation of people's houses -- far more pertinent and interesting information than you get on an electoral roll. So I think you're wasting your time here, Madam Minister.
Sections 58 to 91 inclusive approved.
On section 92.
C. Tanner: Section 92 changes downtown revitalization projects fairly significantly, in my view -- as somebody who has been involved with them over the last ten years -- in that certain aspects of the cost can be spread over a greater area than the specified area in which the downtown revitalization is going to take place. Even having read the whole of section 675, I'm still not clear as to the reason. Could the minister give us a little further explanation, please?
Hon. D. Marzari: In cases when there is a public benefit -- and a public benefit is deemed to be created by downtown revitalization -- there is a new provision allowing a municipality to tax a larger area than the specific area covered by the downtown community of merchants. Consequently, what we have here now is a provision built into the Municipal Act whereby a counterpetition may be taken so that people's interests are served. If there is a wish that there not be a tax on the larger area, citizens can take up a counterpetition. It is basically an enabling piece of legislation to allow for downtown revitalization to take place, with the municipality defining a larger area for taxation purposes.
C. Tanner: I would ask the minister to correct me if I'm wrong. I understood that the specified area is the area that votes on the revitalization in the first place or that makes the request to council, and council makes the request for funding or whatever they want to do. Is the minister now saying that besides that, there can be a countervote against the designation or against the tax over the greater municipality?
[7:45]
Hon. D. Marzari: Any downtown revitalization project must be properly advertised throughout the community at large and obviously throughout the area that's going to be circumscribed as that which might contribute toward the downtown revitalization project. After the advertisement, this legislation basically sets up a process by which people may take up a petition not to be included in the catchment area that would ultimately assist in paying for the downtown revitalization. It's a provision to safeguard taxpayers who may not wish to contribute to or to be involved in the downtown revitalization program. In a community of businesses, you can now petition not to be part of your downtown revitalization program. That is how decisions are generally made about downtown revitalization, in terms of who's sitting at the table to make the decision as to whether or not the program is going to go ahead. The dissent provision in the act, which is being injected into the Municipal Act, is for that portion which might be levied outside the specified area for downtown revitalization.
C. Tanner: I'm sorry, it's still not clear to me, and I think it's important that we get this clear -- in my mind, if in no one else's. Currently there are three ways that you can get a downtown revitalization grant, or even a BIA. One is by having a specified area. It was my understanding up until now that the area that was specified would be the paying area, if you got 65 percent of the voters to agree. Do I now understand the minister to say that if the plan is to spread the cost, in some respects, over the whole municipality, those members outside the specified area can object by petition?
Hon. D. Marzari: That is correct.
G. Wilson: Just a couple of quick questions on the matters with respect to downtown revitalization and the specified areas in a district or municipality. Would that mean that there is effectively a grandfathering on the project costs that would be borne in a project that is ongoing, where a redistribution will occur? Or is it only at the time when the approval of the project is in place?
Hon. D. Marzari: It's at the time of the initial improvement. So existing or ongoing projects would not fall under this provision.
G. Wilson: I believe that a counterpetition has to come forward to prohibit expenditure. I'm looking for anything in this that says that such a counterpetition may in fact have a binding effect. Or would that simply be a discretionary power the minister might use, as provided under this act?
[ Page 12645 ]
Hon. D. Marzari: It does have a binding effect if it is triggered by the appropriate amount of assessment or number of electors.
Sections 92 to 94 inclusive approved.
On section 95.
C. Tanner: Is section 95 a brand-new section in the Municipal Act? What's the purpose of it?
Hon. D. Marzari: Section 95 is a new section. It enables social planning to be engaged in by municipalities, as well as the traditional physical planning which has become the mainstay of land use decision-making in municipalities across the province. The social planning provision here is not compulsory. It is simply a facilitating or enabling clause, which informs and even encourages municipalities to make the connections between physical land use decisions and the social constructs, problems and cost benefits that may occur inside the traditional land use decisions that go on.
The base for social planning has been laid by a number of papers prepared through agencies engaged in social planning, such as SPARC of B.C., over the last number of years, and by a number of municipalities and regional districts that presently engage in this activity called social planning -- making the connections between social values and land use planning. I'm hoping that with the UBCM over the next number of years we'll be able to incorporate principles around what it is to plan for a sustainable community, by bringing in principles such as: how do you best approach social problems? How do you design a community to avoid the creation of social problems? This is all part and parcel of what section 95 can mean. Section 95 is words on paper at the present time, but is full of potential for what we could look forward to in this province down the road.
C. Tanner: I have two questions. First, are we going full circle to about 25 years ago, when municipalities used to do and were involved in social planning or social services? Second, is this the thin edge of the wedge, preparatory to the introduction of the minister's regional planning proposals next year?
Hon. D. Marzari: Well, social planning certainly goes along with what growth management should be about in our province. Obviously we have to engage in growth management in our province. There's common agreement that many municipalities -- especially those suffering in the high-growth areas -- are not able to stretch their services, provisions and programs into a rapidly changing urban landscape. Social planning does go hand in glove with that kind of activity around growth management.
If the member is asking whether this is downloading onto municipal governments something that perhaps provincial governments should be doing, no, it is not.
Are we looking at something full circle back to some kind of a heyday when there was social planning? No, I do not believe that is the case, either. Outside of a handful of cities or regional districts in the province, I don't believe a really interconnected network for social planning has been recognized at the municipal level, although a number of municipalities and non-profit voluntary organizations have encouraged municipalities to take some notice of social situations -- of the way people live and what people's values are -- as they make land use decisions.
So I don't see this as any threat to municipalities. Rather, I see it as a promise and a potential for municipalities to improve the sustainability of their communities down the road and perhaps even save some money.
L. Hanson: Perhaps the minister would comment on this question. Would this allow municipalities to require certain social amenities in construction, such as day care or that sort of provision?
Hon. D. Marzari: No, this section by and of itself does not enforce.... This is simply an enabling, facilitating clause which gives credibility to a profession in this province that has struggled for some recognition for a long while. It does not say that municipalities must now start to build child care centres in each of their schools. That would be covered under another piece of legislation, and it is not on the books. What we're doing here is creating a sensitivity and a possibility.
Sections 95 to 105 inclusive approved.
Sections 106 and 107 negatived.
Sections 108 to 164 inclusive approved.
On section 165.
G. Wilson: I have a very simple question on this, which has to do with the provision of powers to the municipalities. I'm not sure why this would be necessary. Surely municipalities have these powers under the existing act. It seems to expressly look at rollerblades, skateboards and roller skates. It seems to me that those amendments already exist in the act, and I don't understand what is in here that the municipalities are not already empowered to do.
Hon. D. Marzari: The city of Vancouver -- and this is an amendment to the Vancouver Charter, not to the Municipal Act -- has the power to regulate all of these various items used on city streets: sleds, snowboards, skis and skateboards. They do not, however, have the power to impound them. This is the new authority that is granted under the charter to the city of Vancouver. They now have the choice and the power to impound those sliding items which the city of Vancouver would like to have the power to impound. You will notice that the only things that can be impounded are those things which don't leave people standing on the street in their socks.
G. Wilson: That presumes that they even have socks on. Nevertheless, having said that, I guess it also allows sale by auction. Is that also another new section or was that already...? I guess if you couldn't impound them, you couldn't sell them, so it stands to reason that that would be secondary.
Hon. D. Marzari: Yes, the city can impound cars and bicycles. Now they are being told that they will be able to impound these other items.
[8:00]
Sections 165 to 177 inclusive approved.
[ Page 12646 ]
On section 178.
Hon. D. Marzari: I move the amendment standing in my name on the order paper.
[SECTION 178, by adding the following section:
1993 general local elections -- extended time for filing financial disclosure statements178. (1) This section applies to candidates and elector organizations in the 1993 general local elections for whom the financial agent failed to file the required disclosure statement within the time period established by section 91 or 92 of the Municipal Act or section 63 or 64 of the Vancouver Charter, as applicable.
(2) Despite the sections referred to in subsection (1) and despite any resolution of the local authority or any declaration of a court to the contrary made before or after the coming into force of this section,
(a) candidates are not by reason of the failure referred to in that subsection disqualified from being nominated for, elected to or holding office as referred to in section 91 of the Municipal Act or section 63 of the Vancouver Charter, as applicable, and
(b) the office of an elected candidate is not vacant.(3) Despite the sections referred to in subsection (1), elector organizations are not by reason of the failure referred to in that subsection disqualified from endorsing a candidate as referred to in section 92 of the Municipal Act or section 64 of the Vancouver Charter, as applicable.
(4) In respect of candidates declared elected, all acts of those candidates as elected officials in their official capacity are confirmed and validated to the extent that they would have been valid if, at the time the acts took place, the disqualification referred to in subsection (2) did not apply to them.
(5) Despite subsections (2) and (3), a candidate is disqualified as described in section 91 of the Municipal Act or section 63 of the Vancouver Charter, as applicable, and an elector organization is disqualified as described in section 92 of the Municipal Act or section 64 of the Vancouver Charter, as applicable, unless both the following requirements are met:
(a) the required disclosure statement is filed on or before June 30, 1994;
(b) the late filing penalty referred to in section 91 (2) or 92 (2) of the Municipal Act or section 63 (2) or 64 (2) of the Vancouver Charter, as applicable, is paid by the same date.
(6) For the purposes of this section, words and expressions have the meaning given to them in the Local Elections Reform Act, 1993.
(7) This section is retroactive to the extent necessary to give full force and effect to its provisions and must not be construed as lacking retroactive effect in relation to any matter by reason that it makes no specific reference to that matter.]
The amendment I am proposing extends the filing deadline for financial disclosure statements required from candidates in 1993's local government elections to June 30 of this year. You will recall that before last year's local government elections we passed the Local Election Reform Act to bring B.C.'s local-government election legislation into the nineties. One of the new provisions was a requirement on the part of all candidates to file a campaign-financing disclosure statement within 120 days of the election. We believe that financial disclosure is very important in all levels in politics, because electors should have full knowledge of any special interest groups that are backing any particular candidate. Under the new provisions, candidates could file without penalty before March 21, and from March 22 to April 21 they could file if they paid a $500 penalty. After April 21, those who had not filed disclosure statements faced disqualification, which would also prohibit them from running in the consequent by-election or the next general election.
Unfortunately, a significant number of local politicians who ran in last year's elections did not realize that the law required them to file a disclosure statement even if they were elected by acclamation and had no contributions to report. Before April 21, the last day candidates could file their disclosure statements with penalty, there was only one apparent case of confusion. Within a few days, however, the inspector of municipalities received a number of inquiries. With the UBCM we looked at a very brief canvass -- not an exhaustive survey -- and discovered that there were 25 people in ten different communities who had not filed. In our minds, this situation threatened the stability of local governments and created some doubts about their legitimacy and their legal right to govern. Left unattended, we felt this could result in by-elections and some confusion at the local level.
The amendment I'm proposing today to extend the late filing deadline will ensure the stability and legitimacy of our local governments. I want to emphasis that this amendment will apply only to the 1993 general elections. It's a one-time-only commonsense response to a teething problem in the legislation, and not a retreat from our strong position on disclosure. The UBCM is strongly behind this and sees it as a logical and commonsense approach and solution to the problem of the number of days for disclosure.
The amendment does not alter the commitment for full disclosure. All candidates will still be required to file their disclosure statements by the new deadline. Late filers will still be required to pay the $500 fee. It doesn't seem unreasonable to expect people who wish to govern to pay attention to the requirements and obligations associated with holding office.
This amendment will remove the doubts faced by boards and councils and other local governments. It will save hundreds of thousands of dollars in unnecessary costs for by-elections. It demonstrates the commitment of this government to local government stability.
On the amendment.
C. Tanner: I would like to move an amendment to the minister's amendment, which I have given notice of. It reads as follows:
[SECTION 178(5) to read as follows:
(5) Despite subsections (2) and (3), a candidate is disqualified as described in section 91 of the Municipal Act or section 63 of the Vancouver Charter, as applicable, and an elector organization is disqualified as described in section 92 of the Municipal Act or section 64 of the Vancouver Charter, as applicable, unless -- and this is my amendment -- the required disclosure statement is filed on or before June 30, 1994. In the event that such disclosure statement is so filed, there shall be no late filing fees required to be paid by such candidate.]
The reason I move this amendment is that the minister has admitted that there are 25 people, to her knowledge or to the knowledge of the UBCM, who have had problems. I have heard of a number of others, and I suspect there are more. My amendment recognizes that the minister has brought in a commonsense amendment to deal with a situation that happens only this year. My amendment goes one step further and says: "Don't ever do it again, because you are going to pay, both by a fine and by the fact that you can't run again or will be eliminated; but now that you have done it, we will let you not pay the fee for this
[ Page 12647 ]
one time only." To the people elected in some small municipalities, $500 is a considerable expense and a hazard. I think it is not an unreasonable amendment.
On the subamendment.
Hon. D. Marzari: In speaking to this amendment, I must hand a bouquet to the local politicians who were successful in achieving office and to those who were not successful in achieving office. A tremendous number of people -- the majority -- who ran for election with the new provisions paid up, fair and square, right at the beginning when they realized, by mistake or whatever, that they had not disclosed. A number of people paid up appropriately because of the extension. I am asking members of this House to vote against the amendment on the floor out of deference to those who paid and who understood the fairness, equity and importance of the disclosure statement.
In drawing a special line around a certain category of people who hadn't disclosed by a particular time, we would be discriminating in a very real sense. The fact is that if we were to waive the $500 fee at this juncture, we would have to waive that fee for all candidates. If we waived the fee for all candidates at this point in time -- for those who had already paid -- it would cause financial and administrative problems for all local governments that have been in receipt of these dollars. They would have to issue refunds.
But that's not the point. Anything can be done; I'm sure refunds could be issued. The point is the purpose of the penalty itself, which is to reinforce in the minds of everyone across this province that there is a requirement to file financial disclosure statements. This requirement has to be taken seriously by those approaching public office. If we do not have public disclosure, and if we do not have penalties attached if the disclosure is not made for whatever reason, then we simply do not have the backbone for the disclosure process in the first place.
I must admit that across this province, people have paid up. They have understood the purpose behind it, and even when there has been personal sacrifice -- and I'm sure there has been in a number of individual instances -- people have paid up, understanding the principles involved here. It's a testimony to people who approach the responsibility of public life at the local level, and I give them full credit for that. So I would recommend that we vote against this particular amendment, that we proceed apace and that we understand that come the next municipal elections, all the efforts that we've engaged in this time around -- the workshops, the booklets and the manuals with which we tried to reach every single potential candidate -- will be doubled. I know that the municipalities and we here in the provincial government will double our efforts to ensure that everybody is properly informed as to what the rules are around disclosure.
C. Tanner: We're not talking about a great number of people; we're talking about the 25 whom the minister has identified and probably another 20 to 25 who have come to my attention. In fact, I asked the minister to do this when she made her initial announcement. If she had done it at that time, those people who had already paid -- some under duress -- would not have paid now.
[8:15]
I don't think it's a great difficulty for municipalities to refund the money that has been paid. It's easily identifiable, and I'm quite sure they didn't count it in their budget. It's no hardship to the municipalities, and it's no hardship to anybody except those people whom the minister has recognized. By the commonsense solution that she's brought in with her amendment to what was a new act, she's recognized herself that there was a hardship upon some elected municipal members. I would suggest that all members vote for my amendment as well as for the minister's amendment.
Subamendment negatived on the following division:
|
YEAS -- 12 | ||
|
Chisholm |
Hurd |
Gingell |
|
Hanson |
Wilson |
Tanner |
|
Jarvis |
Warnke |
M. de Jong |
|
Symons |
Neufeld |
H. De Jong |
|
NAYS -- 28 | ||
|
Petter |
Marzari |
Priddy |
|
Edwards |
Charbonneau |
O'Neill |
|
Garden |
Dosanjh |
Hammell |
|
B. Jones |
Giesbrecht |
Smallwood |
|
Cull |
Gabelmann |
Clark |
|
Barlee |
Blencoe |
Janssen |
|
Evans |
Randall |
Farnworth |
|
Conroy |
Doyle |
Lord |
|
Jackson |
Copping |
Schreck |
| Lali | ||
Amendment approved.
Section 178 as amended approved.
Title approved.
Hon. D. Marzari: I move the committee rise and report the bill complete with amendment.
Motion approved.
The House resumed; the Speaker in the chair.
Bill 25, Municipal Affairs Statutes Amendment Act, 1994, reported complete with amendment.
The Speaker: When shall the bill be considered as reported?
Hon. G. Clark: With leave of the House now, Mr. Speaker.
Leave granted.
Bill 25, Municipal Affairs Statutes Amendment Act, 1994, read a third time and passed.
Hon. G. Clark: I call report on Bill 41.
COMMUNITY FINANCIAL SERVICES ACT
(continued)
Bill 41 read a third time and passed on division.
[ Page 12648 ]
Hon. G. Clark: I'm tempted to call third reading, hon. Speaker, but I'd better not. I call committee on Bill 40.
FOREST PRACTICES CODE OF BRITISH COLUMBIA ACT
(continued)
The House in committee on Bill 40; D. Streifel in the chair.
On section 10.
Hon. A. Petter: I move the amendment to section 10 that is in the possession of the Clerk. I think it has been circulated.
[SECTION 10,
(a) in the proposed paragraph (c)(i) by adding "silvicultural systems and" before "harvesting methods", and
(b) in the proposed paragraph (d) by adding "in effect when the forest development plan is approved or given effect under Division 5 of this Part" after "higher level plan".]
On the amendment.
W. Hurd: I'd like a clarification on the amendment. The minister referred to (d). I assume he's talking about section 10(b).
Hon. A. Petter: I was referring to the proposed paragraph (d) under section 10.
W. Hurd: Sections 10 to 16 in this particular part of the bill, part 3, all refer to the operational planning requirements for government and the forest resource tenure holders. I wonder if the minister can explain the purposes of the two amendments adding "silvicultural systems and" before "harvesting methods." We are clearly under forest development plans, because as we look ahead we see that sections 12 and 14 refer to silvicultural plans. Could the minister briefly explain to the committee the rationale for the amendment?
Hon. A. Petter: I'd be very happy to. The addition of the words "silvicultural systems" is to clarify what is contemplated and specified in the regulation -- namely, that silvicultural systems as well as harvesting methods are specified. So that's simply to clarify the situation -- to make explicit what is implicit.
The amendment to subsection (d) is the one I referred to earlier, making it clear that the operational plan must be consistent with any higher-level plan that was in effect when the forest development plan is approved or given effect. That means that the relevant time at which the plan must be consistent is the time of its approval. That means that a plan that's in effect and has been approved need not....
The Chair: The hon. member rises on a point of order?
W. Hurd: There appear to be four or five different conversations going on in the assembly at the moment, and I'm trying to follow the reasoning of the minister. Perhaps you could bring the House to order.
The Chair: Well stated, hon. member. Order in the House, please. If you have conversations you want to carry on, hon. members, could you carry on outside.
Hon. A. Petter: To reiterate: the purpose of the second part of the amendment to paragraph (d) is to make it clear that the consistency between the higher-level plan and the forest development plan pertains to the time at which the forest development plan is approved. It wouldn't be until the next anniversary requiring its next approval that it would then have to be brought into conformity with a higher-level plan that had changed in the meantime.
W. Hurd: I think we are getting into one of the highlighted areas -- one of the challenging areas, I would add -- about meeting the spirit of the code. Under section 10, could the minister advise us as to the extent of the challenge being faced by the ministry with respect to the existing five-year plans? Can he give us an idea of how many might be approaching their anniversary date, or where the ministry is in having the existing plans on file that would have to be updated or changed in order to be in compliance with the new code? This is an issue we touched on earlier in the debate, but I would certainly welcome an indication from the ministry with respect to the number of plans that are approaching anniversary dates and how soon we are anticipating that all the plans will have to be in substantial compliance.
[8:30]
Hon. A. Petter: We are trying to get to a number for the member, but the difficulty is that there are a number of plans in different areas: woodlots, forest licences and whatever. On average, something like 800 might come up in a year, I'm told. I should point out for the member's benefit that when we get to the transitional provisions, there is a provision that grandparents plans for an additional year to allow for transition, which we'll deal with under the transitional provisions.
W. Hurd: I would just point out that 800 development plans have to be resubmitted and be cross-referenced by the ministry. Obviously there's extra work required for the ministry not just to receive the plans but to reference them according to the code. The minister indicated earlier in estimates debate that a considerable amount of training would have to be done by ministry staff in order to receive the plans and determine their compliance. I wonder if the minister could advise us when section 10 might apply. Would there be a six-month grace period for the ministry and licensees to determine whether their plans are in compliance? How does the ministry expect to receive that many plans coming due in the course of a single year and cross-reference them according to the new standards and regulations under the Forest Practices Code?
Hon. A. Petter: The member makes it sound as though the approval of plans is somehow an extraordinary activity; it is not. The ministry regularly approves this number of plans. The ministry has been intimately involved in the generation of these standards; therefore this is not going to impose a massive new burden on the ministry. The ministry is well equipped and does an excellent job of evaluating and approving forest development plans. It will certainly have to take account of the new standards, but we don't envisage that as a major or overwhelming undertaking.
With respect to the question of transition, I've already suggested that there are transitional provisions that grandparent continued plans for a year or so, but I think
[ Page 12649 ]
we'd best leave that discussion until we get to part 11, dealing with transition.
The Chair: Before I recognize the member for Powell River-Sunshine Coast, I will ask the members in the corner to please take their social gathering outside or keep it lower. Hon. member for Burnaby-Edmonds, perhaps.... I don't think any of them are listening. Maybe they should go outside and listen. It's very difficult for the committee to hear. You can keep your voices down or socialize in the halls, please.
G. Wilson: We're still on the amendment, I think. I've been trying to read through this material, and my understanding is that the root issue that caused this amendment -- and the minister can tell me if this is so -- is the concern by industry that there may be a requirement for one plan to trigger a second. Therefore there would have to be compliance immediately, which would make it impossible for the industry to comply. I think the term that was used was the "higher level plan." If that were to come into effect at the same time as the other ones, then that would be the problem.
If I understand this correctly -- and the minister can tell me if it's correct -- the reference to division 5 under this section refers to when that plan takes effect. I don't like jumping ahead, but if I read ahead to that division 5, it provides us with some clarity as to when the higher-level plan will come into effect. Is that correct? If not, and if that doesn't solve that problem, what is the reference to division 5?
Hon. A. Petter: With respect to the second point, division 5 refers to the approval date -- an effective date of the operational plans, which in this case is the forest development plan, not the higher-level plan. Subject to that one correction, that is correct.
With respect to the other point, yes, we wanted to make clear that the creation of a higher-level plan would have consequences on lower-level plans, but clearly those consequences should flow in the natural order of things as the lower-level plans come up to their anniversary dates, and not create an immediate need to have a domino effect through all the lower-level plans that would impose an unreasonable burden on licence holders and indeed on the ministry. It's to clarify that the higher-level plan coming into effect will place an obligation on lower-level plans at the time the lower-level plans come up for their anniversary or amendment. They will then have to be brought into conformity, but not before. As a result of this clarified wording, that will be additionally clear.
G. Wilson: With that, I think we can support the amendment. Maybe we could do that.
Amendment approved.
On section 10 as amended.
G. Wilson: I just have one more question with respect to this, and that deals with the necessary inclusion of "size, shape and location of cutblocks proposed for harvesting during the period referred to in paragraph (a)" which is the five-year period. We've just gone through this process of the necessity for management plans, where in fact the chief forester may have a direct influence over the decision as to how those cutblocks are going to be designed and to what extent they're going to be available. Does that not put those companies that may have existing five-year plans into a jeopardy situation with those that may be working on a second round of a five-year plan, in certain areas where they're under licence but have not yet filed?
Hon. A. Petter: Let me take a run at this, because it's another one of these complex issues that requires me to make a distinction. With respect to certain requirements, on-the-ground practices will have to change in order to effect substantive compliance. It doesn't mean that plans will have to change. With respect to cutblock size, for example, when we get to other provisions of the act we'll see that there's a six-month provision. Even under existing plans, within six months the licence holders will be required to come into substantive compliance with the major elements of the code, such as cutblock size, etc., without going through a complete amendment of their plans. That will affect all licence holders and major requirements, such as cutblock size and riparian zones in particular.
In respect of the amendments in the plans which we're talking about here, I suppose one could say there's an advantage or a disadvantage -- I'm not sure which way it cuts. It may be advantageous to get your plan into conformity sooner rather than later. But that's just a natural evolutionary process of anniversary dates. People know when they take on plans that they will come up for review at that time. At that time they will have to come into conformity with whatever requirements exist. Therefore companies will have to bring them into conformity with the higher-level plans under the Forest Practices Code of British Columbia Act. I'm not sure it's a huge disadvantage; it's just the way in which plans are issued and expire, and are then renewed.
G. Wilson: If I understand the minister correctly, he is saying that approved management plans will not, as a result of section 10, particularly in light of this amendment.... Those approved management plans will be able to live out the life of their plan without significant or major amendment. Is that correct? If that's correct, it's going to give great comfort to a lot of people who don't think that's correct.
Hon. A. Petter: In many ways, this issue would be better addressed through the transitional provisions, which really deal more directly with it. In general, the intention is that the existing plans can live out their lives. However, as with many other things, there are certain substantial requirements that will have to be adhered to. There is a six-month period to look at those and review them, and some of those may require modifications in plans. In general, the intention is that the plans can continue to operate, subject to those requirements. As I say, those are dealt with more specifically in the transitional provisions and would probably be better addressed as part of those transitional provisions.
G. Wilson: I agree, and we can pick up that subject in more detail in the transitional provisions.
I have one very minor question to do with "the timing of proposed timber harvesting and related forest practices, including road construction, modification, maintenance and deactivation." With respect to those operational plans, the question of timing may be affected by the sections we
[ Page 12650 ]
have just dealt with: sections 3, 4 and 5. As those plans are put in place, there may be instances where areas that are currently under review may be subject to further study with respect to sensitive-area legislation, which this may bring into play.
In looking at those timing proposals -- and I'm thinking particularly of road construction, because that often has to take place in advance of harvesting, as they will often use the off-season to get roads in place in order to get prepared for harvesting.... In light of what we have seen passed in the previous sections, will the minister give some assurance that this section could not be used to act as an unnecessary encumbrance to those companies -- where roads are already in place -- that are now looking to get actively logging within the next year?
Hon. A. Petter: Outside of the specific issues raised in the transitional provisions regarding particular compliance, the generalist presumption here -- and this will be true of road construction, as it is of other planning requirements -- is that the existing plans continue, subject to particular provisions we will reach when we reach the transitional provisions.
G. Wilson: Is that subject clause basically going to be dealt with within a six-month period after passage of the bill?
Hon. A. Petter: That's correct.
W. Hurd: I would like to have just a brief discussion with respect to the definition of a higher-level plan. I know that the ministry has received feedback from licensees with respect to what constitutes a higher-level plan. I think the inference that could be drawn is that it's a plan that has already been developed. But in fact a higher-level plan can be one that is drafted by the ministry, which would supersede the lower-level plan on file with the ministry. Is it possible that under this particular section the ministry could draft a higher-level plan and thereby trigger the section of the bill which automatically requires the lower-level plan to be in compliance? Under this section, are we going to see a plan that would be generated by ministry staff?
Hon. A. Petter: We already dealt with higher-level plans in the previous part. As was clear, those higher-level plans are generated out of a number of processes. One example was the land resource management process, with public involvement, that will result in higher-level plans. I would reiterate that these operational plans -- the forest development plans -- need only be brought into conformity with the higher-level plans when they reach their natural anniversary date, not immediately upon the promulgation of those higher-level plans. I certainly don't think it's appropriate to revisit the whole discussion we've already had about how higher-level plans are generated. We discussed that at some length before the supper break.
[8:45]
W. Hurd: I don't necessarily remember the in-depth discussion the minister is referring to. But I know that he has received an expression of concern about the effects of higher-level planning and the fact that it could introduce some uncertainty into the existing planning process. I know for a fact that he has received that input, and I think it's important to put that on the record.
One other issue that I want to canvass with respect to section 10 is the existing requirement for a tree farm licence holder to hold some sort of public involvement process, if so ordered by the ministry. With respect to all these sections -- sections 10 and 11, and, in particular, section 10 -- would there be a provision for some sort of public meeting, with maps and development plans? Is that dealt with in a later section of the bill? Or is that assumed in all the sections that we're dealing with? I would assume that it ranges from section 10 all the way through to section 16. Is there a public involvement component here, as there is with a tree farm licence, for example?
Hon. A. Petter: Yes, there is, and that is dealt with in division 5, in particular in section 39, which we will hopefully reach in the very near future.
W. Hurd: Just one further comment. I note that under section 10, the forest development plan is now required to be signed and sealed by a professional forester. I guess that has always been the case with the silvicultural prescriptions. In these sections, it appears that there's a provision for a copy of the plan to be signed and sealed by a professional forester, and, of course, we now have a professional act in the province that mandates certain rights and responsibilities for professional foresters. Could the minister explain whether existing regulations in the province state that these plans are to be signed and sealed by professional foresters, or is this something new under these provisions?
Hon. A. Petter: Like many things in this code, this is codifying a practice which has been developed and is the current practice but which has not been put into legislative form to this date. Certainly it is the current practice that these plans must be signed and sealed by a professional forester, and that is now recognized in the legislation.
Section 10 as amended approved.
On section 11.
Hon. A. Petter: I would move the amendment to section 11 that is in the possession of the Clerk, and hopefully members opposite.
[SECTION 11,
(a) by deleting the proposed paragraph (c) and substituting the following:(c) if it is a logging plan referred to in section 20 or 21(1), be consistent with any (i) forest development plan, and (ii) silviculture prescription in effect when the logging plan is approved or given effect under Division 5 of this Part, and., and
(b) in the proposed paragraph (d) by adding "in effect when the logging plan is approved or given effect under Division 5 of this Part" after "higher level plan".]
On the amendment.
G. Wilson: I think it would be good to have the minister on record that this amendment has the same effect as the amendment to section 10.
Hon. A. Petter: Members will find that this amendment and indeed many of the succeeding amendments simply reiterate the earlier amendment to clarify that the conformity of the operational plans with the higher-level
[ Page 12651 ]
plans is triggered at the time of the operational plans going through their anniversary date process. I'm happy to confirm that for the member.
Amendment approved.
Section 11 as amended approved.
On section 12.
Hon. A. Petter: I move an amendment to section 12 that is in the possession of the Clerk.
[SECTION 12,
(a) by deleting the proposed paragraph (b) and substituting the following:(b) if it is a silviculture prescription referred to in section 22, be consistent with any
(i) forest development plan,
(ii) higher level plan, and
(iii) 5 year silviculture plan in effect when the silviculture prescription is approved or given effect under Division 5 of this Part., and(b) by deleting the proposed paragraph (c) and substituting the following:
(c) if it is a silviculture prescription referred to in section 23, be consistent with any
(i) higher level plan, and
(ii) 5 year silviculture plan
in effect when the silviculture prescription is approved or given effect under Division 5 of this Part, and.]
The amendment would delete the proposed paragraph (b) and substitute a new paragraph (b), which has been circulated, and would delete a proposed paragraph (c) and substitute a new paragraph (c), which has also been circulated and is in the possession of the Clerk.
Again, the import of these amendments is exactly the same -- namely, to make clear the fact that the consistency that is sought with the development plans is achieved at the time the development plans are renewed, not at the time of the higher-level plan being altered or brought into effect.
Amendment approved.
Section 12 as amended approved.
On section 13.
Hon. A. Petter: Again, I move the amendment that is in the possession of the Clerk.
[SECTION 13,
by deleting the proposed paragraph (b) and substituting the following:(b) be consistent with any
(i) higher level plan, and
(ii) 5 year silviculture plan
in effect when the stand management prescription is approved or given effect under Division 5 of this Part, and.]
The effect of this amendment is the same: it is to delete the proposed paragraph (b) by substituting a new paragraph (b) that clarifies the rule regarding consistency in the same way that we have done in previous sections.
Amendment approved.
Section 13 as amended approved.
On section 14.
Hon. A. Petter: Again, I move the amendment that is in the possession of the Clerk.
[SECTION 14,
by deleting the proposed paragraph (b) and substituting the following:(b) be consistent with any
(i) forest development plan, and
(ii) higher level plan
in effect when the 5 year silviculture plan is approved or given effect under Division 5 of this Part, and.]
This amendment is to exactly the same general effect: it is to replace the proposed paragraph (b) with a new paragraph (b) that has the same effect as the previous amendment.
Amendment approved.
On section 14 as amended.
W. Hurd: This section parallels the existing Forest Act. Can the minister advise us whether the requirements for the five-year silvicultural plans are any more stringent than they were or have been under existing legislation? Or is it just a question of taking what currently exists in regulation and codifying it in this code? Are we seeing an enhanced silvicultural regime, or is this just paralleling the regulations or the standards that currently exist in other acts?
Hon. A. Petter: The plan that is contemplated here is a little different, particularly in the process, but I think the change is one that should be welcomed by both the public and licence holders. What is being contemplated here is that pursuant to the proposed operational planning regulations there be a five-year silvicultural plan produced that would be made available for the public and that would bring together all of the smaller, incremental tree-harvest, silviculture and prescription plans into a single five-year plan that would then be advertised and made available to the public. The public could gain a better understanding of what is being proposed silviculturally over a longer period of time, and the licence holder does not have the requirement of having to advertise and seek public input on each and every increment along the way. That's the major change here. It's a change in the approach in that silvicultural plans are brought into this five-year planning process. That will enable better public access and will also make things easier for licence holders, who will be able to consolidate their plans and have them reviewed in a more efficient fashion.
G. Wilson: I just wonder if the minister might tell us how this section might relate to section 129.2 of the current act with respect to the duty of the Crown. Does that amend that section?
My second question is with respect to the definition of the backlog areas that we talked about earlier. Is that a prescription that could be imposed on a plan, or is that something that would be voluntarily included?
Hon. A. Petter: I think the short answer is that this section and the silvicultural plans will continue to apply to the Crown in the same way they do to other licence holders. Therefore the Crown will have to produce a five-year silvicultural plan along with other silvicultural plans. The changes that are being made are of equal import to the Crown and to the other licence holders.
[ Page 12652 ]
G. Wilson: That was the answer to the first question. I assume, then, that where harvesting yields small business forest enterprise revenue, the Crown is going to be subject to exactly the same kind of regulation with respect to the provision of silviculture as per section 129.2 of the existing act. I think that's what I heard the minister say. Maybe we'll just clear that up first.
Hon. A. Petter: The answer is yes, and I think we'll get to that more directly in section 22.
G. Wilson: Yes, I agree that we will.
The second question is with respect to the backlog areas. Is that something that can be imposed on a plan? We went through a bit of a discussion on who can define it. I'm just curious to know, if a plan were put forward, if additional silviculture requirements could be imposed as a result of the definition of a backlog area, which we already passed.
Hon. A. Petter: Without getting into the intricacies of the credits that are given and the requirements of backlog areas, the answer is yes. Silvicultural work on a backlog area must.... The requirements of silviculture can be incorporated within the plans and imposed on licence holders through those plans. There are certain credit arrangements and licence requirements concerning backlog areas that aren't dealt with here.
G. Wilson: With the indulgence of the committee, I had another consultation underway. So there could be an imposition of a plan if the official deemed it so. Is that what the minister just said?
Hon. A. Petter: The word "imposition" has me a little worried. The obligation would come from some arrangement outside the code. But if the obligation exists, for example, to reforest backlog areas, then the way in which that obligation is carried out would be provided for within these plans.
Section 14 as amended approved.
On section 15.
Hon. A. Petter: I move the amendment to section 15 that is in the possession of the Clerk. That amendment would, at the end of paragraph (b), add the words: "in effect when the access management plan is approved or given effect under Division 5 of this Part"; that is to much the same effect as the earlier amendments.
[9:00]
Amendment approved.
Section 15 as amended approved.
On section 16.
Hon. A. Petter: I move the amendment to section 16 that's in the possession of the Clerk. In the proposed paragraph (b), this would add at the end: "in effect when the range use plan is approved or given effect under Division 5 of this Part"; again, this is to accomplish the same purpose and intent that we looked to in the previous amendments that were considered under previous sections.
On the amendment.
W. Hurd: The minister has alluded to the fact that the amendment has the same effect, but in fact the range plans occupy a somewhat different planning function in British Columbia. I know the ministry has in this year's budget eliminated the grants for long-range planning under the Range Act and for grazing tenure holders in the province.
I wonder if the minister could first assure the committee that the amendment proposed under section 16 does not in fact confer any additional burden on the range holders in the province, who have a somewhat different planning function or ability to provide long-range planning to the ministry than do many cutblock holders and others who hold forest licences. Could the minister offer, first of all, the rationale or the justification for the amendment as it relates to range plans as opposed to tenure holders on the forest side?
Hon. A. Petter: The impact and intent of the amendment is to ensure that range holders are given the same assurance that we have given through the previous amendments to other forms of tenure holders: namely, that they need only bring their operational plans into conformity with higher-level plans at the time when those operational plans are subject to approval; and therefore, that existing operational plans need not be amended simply because there has been a higher-level plan that would seem to be inconsistent. The consistency need only be achieved at an anniversary or at the time a new operational plan is issued.
W. Hurd: I could just as easily address these questions to the amendment as to the section itself. As I indicated earlier, I think the tenure holders on range lands occupy a different category than do the forest tenure holders. Clearly their planning function is quite a bit different. I suppose that in many ways it's not as complex, and in many cases we're not dealing with an industry that has the same kinds of resources at its disposal to file these plans.
I wonder, hon. Chair, if I could ask the same question under the amendment to section 16 that I asked under section 10. That is: can the minister advise us how many range plans in the province are coming up for renewal and how many will then have to be upgraded to the higher planning function? Clearly it's the maturational cycle of the existing plan that triggers the need to meet the higher-level plan. I just ask that question because I know that with the planning grants to range holders having been eliminated, this has the potential to place quite a sizable burden on this industry in the province.
Hon. A. Petter: This is a little beyond the scope of the amendment, and we might want to defer further inquiry into this issue until we reach section 27. But in terms of the specific question, I understand that about 700 range tenures would expire in a given year. As I understand the process with respect to grazing permits, they come up for renewal when they expire, so it's a question of their expiry. It's not like some of the forest licences, which are subject to a renewal provision.
W. Hurd: Just a point of clarification, then: when the expiration occurs, in order to achieve another renewal -- however long a period that might be -- the licence holder would be required, under the amendment to section 16, to
[ Page 12653 ]
bring the existing plan into compliance with any higher-level plan that the ministry could theoretically set for grazing tenure holders in the province. Is that a correct analysis of what could and will occur?
Hon. A. Petter: Yes. I think the hon. member has to understand that the current approvals are in a sense ones that have to conform with the higher-level plans of a timber supply area or whatever. Again, this process is going to fall within the capabilities of the ministry, because it's the work that the ministry does when it approves licences of this kind and plans that accompany those licences. It must ensure that those licences and plans accord with the larger planning that has gone on within that area. That will continue to be the case. It's formalized, however, through section 16, and the ministry is certainly well equipped to deal with those issues.
R. Neufeld: I have one quick question. Are range plans that are required now normally for five years or two years? Are they staggered? What are the terms?
Hon. A. Petter: I understand that in the case of grazing licences, the licences and plans are for a ten-year period. In the case of permits, it can run one to five years, depending on the particular circumstances. So it's a one- to five-year period.
R. Neufeld: I'm certainly not advocating that we should put any more bureaucracy on people that have range use plans. But all other plans are signed off by a professional forester, of course, which is normal -- other than section 15. In section 16, do we just accept the plan that's given to us, and the professional people within the Forest Service can ratify these plans so that they meet the goals?
Hon. A. Petter: It's not correct that all other plans require a professional forester; the access management plan does not. If we're dealing with planning areas where no one profession can have a complete claim on all the elements, it wouldn't make sense to designate a particular professional. In this case, within its capability, the ministry has staff who are capable of making this determination. They may not be professional foresters, because professional forester skills don't necessarily lend themselves to this planning. The member can be assured that the designated officials are ones that have expertise in this area and have the correct constellation of abilities, but it is not the kind of constellation that lends itself to a particular designation of forester or agrologist or whatever, and for that reason it's not specified.
Amendment approved.
Section 16 as amended approved.
On section 17.
G. Wilson: The first thing we have to look at with respect to section 17 is the extensive amount of information that this operational planning requirement is going to place upon a licence holder, some of which is going to be fairly expensive for that licence holder to gain. That licence holder is then going to have to hand over that material to the government. The concern I have is that it suggests that before any agreement under the Forest Act or Range Act, there has to be the preparation of an operational plan. That operational plan is going to have to provide, in accordance with regulation, classification of streams, wetlands, lakes, wildlife habitat, scenic areas, recreation features, and areas that are required to be identified and classified -- and again, that's a regulatory kind of thing. I don't know whether or not there is a standard format by which that has to be reported. If you are talking about classification of those things, presumably there is a standard prescribed classification that is going to be...and again I'll use the word "imposed" upon the licensee.
Then under subsection (3) you're saying: "Without limiting subsection (1), the holder, if required by the regulations and in accordance with the regulations, must collect and analyze data respecting (a) site and soil conditions; (b) terrain, terrain stability and hazards associated with instability; (c) forest health including pests and other forest health hazards; (d) any prescribed matters." In all of that, if you're going to have to collect and analyze data, you're talking about a substantial investment in terms of the kind of research that is going to be ongoing.
To begin with, I wonder if the minister can answer three questions. First, is it intended that any consideration would be given to the financial cost of the provision of that service? In other words, is there some measure by which the cost is going to be reviewed or considered in terms of the licensing? Second, is there a prescribed standard by which categorization is going to occur? If that's true, does it come from the Ministry of Forests or is it established through the Ministry of Environment? Third, what kind of research is envisaged by subsection 17(3) with respect to the collection and analysis of the things that are called for in this bill, which can be very expensive?
Hon. A. Petter: I think the reality is that with many of the items listed in subsection (2), many licence holders are already doing some of this work. These are, however, the major new areas that are going to be required in operational plans. Some have already moved in that direction, and some have a way to go. There will be costs. That's one of the reasons there will be a phase-in. The words "if required by the regulations and in accordance with the regulations" will allow us to bring these requirements in gradually and also, through the transitional provisions, to ensure that they are factored in to minimize the cost. But if we're going to move to integrated resource management that takes account of these kinds of values -- and I believe that's necessary -- then over time this responsibility must be assumed by those who are undertaking the planning requirements.
The other question was about the standards and prescriptions. I believe that the "Standards" document sets out the proposed standards with respect to the classification and identification of these values.
[9:15]
I must confess -- and I apologize to the member -- that I'm not sure I fully understood or caught the meaning of the third element of his question. Was it about research? Perhaps he can clarify that.
G. Wilson: One of the fascinating things about doing this bill is that you have.... Actually, we're debating about four different things at once, it would seem, in terms of draft regulations, draft standards, cost implications, the previous act and this one. I take it that in fact there are
[ Page 12654 ]
some standards set down with respect to this classification system.
Nevertheless, if you look at subsections 17(2) and 17(3) -- and this is my third question -- the requirements that may be made there for collection and analysis of data in particular habitats that may be considered to be sensitive and that may require particular prescriptions are going to be enormously expensive. I'm not arguing that it doesn't have to be done or shouldn't be done. I'd be the last person to say that we should not put in place an integrated land management plan. Certainly I've been saying it ad nauseam for many years. But the question is: why pays? How is that cost distributed? Who picks up a share of it?
In the last instance, if you're requiring the collection and analysis of data, it can be an enormously time-consuming and very expensive process. The process could also be sensitive to particular seasons. There may be seasonal variation; it may be something that can only be done in a very limited or prescribed period during the year as a result of climatic condition -- rainfall, snowfall or snow cover. There are all kinds of reasons why it could be a real problem if you're going to require the collection and analysis of data. It is also going to require that not only is there a consistent standard met with respect to any kind of laboratory work that may be done on this.... If it requires analysis in a more sophisticated laboratory, it has to be consistent if it's to mean anything.
So it seems to me that if we're going to encourage this -- and I think we should -- we have to recognize that there's going to be a time-sensitivity requirement on some of this stuff, because sometimes you can't get in to get the data except during very limited periods of the year.
Second, we have to recognize that companies should work with the government in order to make sure that the data that's provided, which is going to be of great use and value to the government outside of the harvesting practice of the company.... The government is receiving a bagful of information, if I can use that term, that's going to be enormously useful to a wide range of land use decisions that it might make outside of the normal prescription for harvesting. The harvesting may take place in three or four months; the silviculture process may take place a year hence. In the prescription for growing that forest, this information could be invaluable. Yet it seems that the government is saying that the onus of payment is exclusively on the company rather than saying that for those companies that fulfil this kind of thing, there is going to be some kind of recognition of the cost of the work made with respect to royalties or stumpage. That's where I'm coming from.
Hon. A. Petter: I would argue that there has been recognition. One of the factors the government took into account when it implemented the forest renewal plan and the stumpage increase that went along with that was to discount an allowance for increased costs due to the Forest Practices Code from that potential increase. I said that at the time. The member looks startled, but I said that at the time. If you look at the profitability of forest companies these days, I think you can see that that has been the case. Forest companies have been left room both for profit and to make the necessary adjustments to the Forest Practices Code.
I also want to caution the member that these requirements are not, and in almost all cases should not, be major new requirements. In many cases, such as subsection (3), this is meat-and-potatoes stuff. If you as a company are going to propose a harvesting activity, then you should be in a position to predict what the impact of that will be on site and soil conditions in order to maintain the future viability of the site as a growing site. Terrain, terrain stability and hazards associated with instability, if you're going to build a road.... One of the problems we've had in the past, as the member knows, is road instability, which has caused great damage not only to streams but also to growing sites.
In many cases, companies have made those adjustments. That's why I've said in the past that the greatest costs will be borne by those companies that have not made the adjustments. What we're talking about here is levelling the playing field for those relatively few companies that have not yet come into conformity with these basic requirements. This will ensure that they do so. It will take away the unfortunate competitive advantage that they enjoy over those companies that have invested in making sure that when they plan roads or forest activities, they do so in a way that minimizes threats to forest health, maintains stability with respect to roads, and ensures that site and soil conditions will support future growth. That's pretty basic stuff.
With respect to the other requirements about classification, if one is going to do logging in the areas of streams or wetlands, one should have some sense of whether those streams are fish-bearing or not and what class of streams they are. Similarly with wildlife habitat areas, there should be.... In most cases companies now do look to wildlife habitat concerns.
I would turn the equation around for the member. I would say that to not require companies to take account of these matters and bear the costs is to allow companies to essentially enjoy a subsidy at the expense of other resource users: those who look to the salmon in those streams and future tenure holders who look to that soil to support forestry. What this is really doing in economic terms is preventing companies from externalizing costs by sloughing them off to others who depend on other resources or the future use of the soil. In that way I think it's a fiscally responsible action that should be welcomed by those who want companies to bear appropriate responsibility for the very considerable benefits they enjoy from having access to public forest land and forest land within tree farm licences and woodlots.
G. Wilson: I was smiling for just a moment, because it took me back to a convention where, as a resource economist, I was actually arguing the position of the minister; so I know that argument very well. The difficulty we have here is that we've now got a Forest Practices Code that is going to put all kinds of hidden costs on an industry that the minister will recognize is cyclical. While the industry has maybe done well over the last few years, it may not always do that well as the cycles change.
My concern is simply that we're going to off-load a lot of research, in a sense, that may be required of the industry without recognizing that there is a benefit to the general public for that research to be done in a manner that has conformity. It is something that can be useful in the broader context of land use regulation, rather than simply on the question of silviculture harvesting. Therefore there may be some value to the government working in partnership to make sure that that information is available. That's my concern.
[ Page 12655 ]
Hon. A. Petter: While I don't disagree in general, I think I would distinguish, for the member's benefit, between things that a licence holder would undertake in order to meet the requirements necessary to engage in good forest stewardship, and further research and benefits of that research that may benefit society as a whole. Through the forest renewal plan, by agreeing to invest the stumpage increase back into the forest, as opposed to diverting it to some other purpose, and signalling that a significant component of that will go to research in areas that are relevant to good forest health -- for example, biological control -- this government is in fact making the very commitment the member has asked us to make: to take a public value from a public resource, in this case, and dedicate it toward the public interest in the continuance of that resource. That goes beyond the kind of basic inventory work and analysis of data that's required as part of a general planning requirement under the Forest Practices Code.
R. Neufeld: The one question in here that the member for Powell River-Sunshine Coast glossed over was "assess cultural heritage resources." Could the minister explain how that's going to be done? Maybe I'm ignorant of the fact that it's already done now. Maybe it's done in specific areas, but I'm not sure whether it's done normally across the whole province.
The section deals with the Forest Act or Range Act. My second question is: does any of this section cover range use plans? Do all the requirements in this section apply to range use plans?
Hon. A. Petter: With respect to the assessment of cultural heritage resources, the situation currently varies, depending on the licence and the requirement. In general, as a result of court decisions and other decisions, there is a requirement for us to assess, for example, aboriginal cultural resources and to ensure that forest development activity does not impede those resources. Those who undertake the general planning requirements -- licence holders -- are in the best position to assess those. The regulations will stipulate conditions under which, and how, that assessment should take place.
With respect to the question about range use, the answer is that the situation now varies, I take it, depending on the nature of the licence. Again, there is the capacity here, through regulations, to impose these requirements on range use plans, but it will have to be done in a way that's sensitive to the particular requirements and situation of the range use licence holders.
R. Neufeld: On the range use perspective, I would assume that some of the requirements of this section would not apply. Will that be determined by regulation? Will the regulations state which parts of section 17 apply to the Range Act?
Hon. A. Petter: The member is correct: none of this applies until regulations are in place. If the member is interested in what's contemplated in the regulations, he'll be aware that we released regulations in order to give members some sense of this. The operational planning regulation, part 9, deals with range use plans, and I think it gives a fairly clear indication of the kinds of requirements that are being contemplated with respect to range land. Clearly the member is right that some of these requirements would not be applicable, and that is reflected in the draft regulations.
W. Hurd: This particular section is one that causes me a great deal of concern. I can see the potential for some planning processes to rapidly grind to a halt. Could the minister just clarify section 17? It implies that before the holder of an agreement under the Forest Act or Range Act prepares his operational plan -- before he does his cutblock planning and every other type of plan that currently has to be prepared -- he first has to go out and categorize all this additional information, some of which he may have already undertaken but, I suspect, a lot of which he hasn't. Can the minister tell us whether the licensee is required to share this adjunct information with the ministry before he prepares his operational plan? What is the chronology here?
[9:30]
I can see a scenario where, if the licensee were to provide this information to the ministry, the ministry could conceivably turn around and develop this higher-level plan that we talked about earlier, and the unfortunate licensee could be in the position of having the tail wag the dog. There are provisions in this bill that all information that the forest licensee garners has to be presented to the ministry. I can see a serious problem developing with the chronology. Once the licensee has gone through these myriad requirements and has filed them in report form, can one assume that he then has to make them available to the ministry before he even begins to work on a new development plan?
Hon. A. Petter: I think it's really quite simple. If a licence holder is going to propose a development plan in respect of an area that's proximate to a stream, for example, the licence holder needs to know what kind of stream that is and what its capabilities are in order to know what the standards are with respect to the riparian management zone. So the licence holder would do the necessary assessments on the stream, determine what class the stream is and what the requirements are, prepare the operational plans and then present that to the ministry. If the ministry asked, "Can you confirm that this in fact is the class of stream you say it is?" the assessments and data that back up the plan would then be available. Otherwise, the ministry couldn't make the assessment that it must make in order to ensure that the plan is consistent with the standards.
It's a very rational process, and a process that will continue with respect to future plans. There is nothing mysterious about this. It would be most irrational to expect people to prepare plans in advance of doing the assessments.
W. Hurd: I think I've been the victim of a sideways shuffle here, because that's not precisely the question I asked. Once the licensee has acquired all this reciprocal data which the act clearly says has to occur before he even begins to work on his development plan, would there be an interim requirement for him to share that information with the ministry, or does the bag of plans all arrive in one lump?
I can see a potential problem developing here if the licensee prepares all these area studies of wildlife habitat, streams, wetlands and lakes, and before he gets to the operational plan, the ministry approaches him and says: "We understand that you've done a study on wetland habitation. We'd like to see what you have." Is that a
[ Page 12656 ]
possibility under this section? If it is, then clearly the ministry could identify the data and decide in the interim that it wanted to see a higher-level plan developed for this particular region, and the licensee could be going off on a tangent and developing a plan that would simply have to be updated and resubmitted. I can see a trail of paper developing here, and I want the minister's assurance that all of this information which is required to be catalogued will be presented at the same time to the ministry. Could there be a scenario where it would be presented separately?
Hon. A. Petter: If I can assure the member this way, the purpose of requiring that these assessments and data analyses be made available is to support the operational planning process, not some other research agenda. Therefore it is contemplated that data will be made available, when necessary, to support operational planning decisions.
The other point the member should recognize, though, is that this is not a process that takes place at one time and at one place; it is a process that unfolds and builds, block upon block. Therefore the data will build as well, and the ministry will receive information analyses over a course of years, and planning decisions will be made over that same course of time. There is no intention to have some separate delivery of information or material for the benefit of the ministry, apart from the necessity of that material to support the operational planning requirements laid out in this division and in this section.
W. Hurd: Could the minister then advise us whether the Ministry of Environment would be able to commission any of the information, particularly if, under a previous section, an environmental official wanted to declare an area as sensitive? As we discussed earlier, that does allow a triggering mechanism from the Ministry of Environment. Could the Ministry of Environment, in its deliberations about declaring an area sensitive, commission any portion of this information before it's presented in its totality to the ministry? Or, again, would the Ministry of Environment only access this information once it had been formally filed with the Ministry of Forests?
Hon. A. Petter: I think it would take a highly tortured interpretation of this section -- one that I don't think would find a lot of favour with the courts, for example -- to assume that you could use it to somehow support inventory work or data analyses that were unrelated to what this section is about, namely the development of operational plans. Certainly my reading of this section, and the intent of it -- if the member wants that assurance -- is that this data is to be collected and analyzed for the purpose of supporting the development of operational plans and the requirements that are attached to those plans, not for some ulterior purpose that relates to something outside the operational planning requirements.
W. Hurd: All this additional information, according to the wording of this section, has to be undertaken "before the holder of an agreement under the Forest Act...prepares an operational plan." Clearly, if he wants to prepare a new plan or amend an existing plan, this additional information has to be in a form that is acceptable to the ministry. This gets us into the discussion the minister had with the member for Powell River-Sunshine Coast. Licensees are not necessarily enjoying a competitive advantage based on the accuracy of the inventory data. There are different types of forest licences under the act that currently require different types of planning processes.
I suspect that section 17 is going to confer a huge additional burden, but not necessarily on large licensees, who may have tree farm licences, where this information is probably in a more current form than it would be for a simple forest licence. I would really be concerned that the smaller tenure holders, who may not have previously been required to update this information, may be in a more vulnerable position relative to the requirement to bring all this information up to date before they can prepare their operational plans. I would just throw that concern on the table. I know that it has been mentioned. But I suspect that section 17 will confer a much greater burden on smaller licensees than on a tree farm licence holder or a larger major licensee in the province.
Section 17 approved.
On section 18.
Hon. A. Petter: I move the amendment to section 18 that is in the possession of the Clerk. That amendment relates to the proposed subsection (5)(b) and deletes the reference to section 41 in that subsection and substitutes "Division 5 of this Part." The reason for that change is to clarify that it is in reference to the whole division, not just to that one section to which the subsection pertains. This amendment will be replicated elsewhere. It's a clarification of purpose.
Amendment approved.
On section 18 as amended.
W. Hurd: I have a general question with respect to this section. Could the minister advise the committee whether the small business forest enterprise program, which is the subject of section 18, has any less of a burden imposed on it than would be faced by licence holders under section 17? For example, I am looking at subsection 18(2), which indicates that subsection (1), requiring cutting permits and a development plan, does not apply. Can the minister advise us whether he is comfortable that the requirements for development planning by the small business enterprise program are as tough and comprehensive as they are for licensees under section 17?
Hon. A. Petter: I am informed that the same basic planning requirements apply. Subsection (2) deals with a particular circumstance under the Park Act where the timber can be harvested but not sold. That's the situation, and it's to deal with that one situation that subsection (2) is there. In general terms, the requirements are analogous.
W. Hurd: Before the district manager proceeds with a cutting permit or files for a cutting permit under the small business program, I assume that he or the regional manager is required to have all the additional requirements under section 17 -- the streams, wetland and lake studies, and those of wildlife habitat areas. All those requirements continue to be faced by the regional manager or the forest development officer under the small business enterprise program. The minister alluded earlier
[ Page 12657 ]
to the need to level the playing field, and I am seeking assurances that before a cutting permit is issued under the small business program that all that work would have to be completed and on file at the ministry.
Hon. A. Petter: I am informed that the same requirements apply that are referred to in section 17, and that is incorporated within the regulations. The same requirements are required of the small business program.
Section 18 as amended approved.
On section 19.
Hon. A. Petter: I move the amendment to section 19 that is in the possession of the Clerk. That amendment in proposed subsections (2) and (3) deletes the reference to section 41 and substitutes the reference to "Division 5 of this Part," for the same reason as before: to be clear that it refers to the entire division, not just to the one section.
Amendment approved.
Section 19 as amended approved.
Sections 20 and 21 approved.
On section 22.
Hon. A. Petter: I move the amendments to section 22 that are in the possession of the Clerk. Hopefully, members have a copy of these proposed amendments in their hands.
[SECTION 22,
(a) in the proposed subsection (1) by deleting "following areas:" and substituting "following areas of Crown land:",
This is to clarify the responsibilities with respect to a particular situation that I can describe if members want.
(b) in the proposed subsection (1)(b) by adding "by natural causes" after "destroyed",
(c) in the proposed subsections (5) and (6) by deleting "Without limiting subsection (4)," and by adding "by natural causes" after "timber has been damaged or destroyed", and
(d) by adding the following subsection:
(8) For the purposes of subsection (1), Crown land does not include land that is Crown land only because the timber on the land is reserved to the government.]
On the amendments.
W. Hurd: I wonder if the minister could just clarify the rationale for one of the amendments to section 22, which clearly does not follow the line of reasoning of the previous amendments. I'm specifically interested in the reference to areas of Crown land. Is that a distinction here? I assume that until now we've been dealing with both Crown land and private land that is in a management unit. Does this change that in any way?
[9:45]
Hon. A. Petter: As I understand it, that amendment is there because Crown land as defined in the Land Act -- and, by reference, the Forest Act -- includes private land over which the Crown has retained certain timber rights. Clearly it is not the intention of the Crown to assume silvicultural obligations with respect to that land. The land itself is not actually Crown land; it just happens to be defined for that purpose. Therefore this is intended to clarify that situation.
W. Hurd: Would that also, then, include land leased from the Crown for purposes of timber harvesting? I'm thinking of rangeland holders who may be involved in harvesting a small quota on leased land from the Crown. I assume that this definition applies to that type of quota or tenure arrangement as well.
Hon. A. Petter: No, there are no express silvicultural obligations with respect to that kind of land.
Amendments approved.
On section 22 as amended.
G. Wilson: I have just a quick question on this. In light of the amendments, then, as they apply -- particularly with respect to amendment (c) on natural causes -- I wonder if the minister could mention, with respect to those obligations.... Presumably some provision is going to be put in place over a regional plan to look after the silviculture needs of both natural causes and those prescribed in these plans. But I just wonder what the reference is under amendment (c) that says: "...in the proposed subsections (5) and (6) by deleting 'Without limiting subsection 4,' and by adding 'by natural causes' after 'timber has been damaged or destroyed'...." Subsection 22(2) goes on to say: "A person must not harvest timber from an area referred to in subsection 1(a) until the district manager prepares a silviculture prescription for the area." If we're dealing only with land that's subject to natural causes and know that silviculture prescriptions already will be in place for that area -- recognizing that the prescription for silviculture is going to have to be fulfilled in the cut plan, anyway -- why is there a restriction with respect to harvesting timber in areas under subsection (1)?
Hon. A. Petter: I think the short answer is that it's there because you can't harvest without a prescription.
G. Wilson: I understand that. But it seems to me that there can be -- and I would imagine that there will be -- a number of areas that could be identified where a considerable amount of damage created through natural causes falls within a larger area that could be prescribed for cutting, and that might allow an operator to continue into those sections, given that the cut may take place over an extended of period of time. The silviculture prescription shouldn't necessarily preclude harvesting from commencing, because the plan itself is going to have to prescribe the silviculture procedure anyway. I don't understand why subsection (2) is even in there. It seems to me that it's a redundancy and that all it does is give the Crown one more reason not to approve a cut plan.
Hon. A. Petter: This a matter of course and practice. The ministry never allows harvesting to take place unless and until there is a plan in place that provides for reforestation, so I'm at a bit of a loss as to why the member finds that peculiar. It is a matter of practice of the ministry.
G. Wilson: I can see the lateness of the hour is having an effect -- certainly on this member, anyway. The reason I say that is that we have just gone through a whole series of discussions around silviculture plans and the requirement of the licence holder to put in place those
[ Page 12658 ]
prescriptions, and then this section says that the district manager will prepare the silviculture prescription as per section 22(1)(a). So I'm asking why you would then be dependent on the district management's preparation of a silviculture plan and not allow the company to proceed forward, when the prescription is going to have to come by virtue of this act anyway.
Hon. A. Petter: I think maybe the member's misunderstanding relates to the fact that what's referred to here is the ministry's obligation under the small business program, and that's why the reference is made to the district manager. The district manager's obligation here flows from the obligations the Crown has with respect to silviculture prescriptions on small business areas, not from some general regulatory requirement.
G. Wilson: I'm well aware of that, because I think we're dealing with section 129.2 of the existing act. I think that that's the provision we're looking at in terms of the duty of the Crown with respect to silviculture. But if the Crown is putting in place the regulatory authority to permit harvesting, and the prescription for silviculture, I don't understand why the Crown would preclude the harvesting, given that that prescription for silviculture is something that the Crown will have take place anyway. In other words, once you've harvested, presumably you go in with one prescription for that area which is damaged naturally and for that area which has been harvested through a licensed cutting permit. Wouldn't you? It seems to make more sense to put in place one prescription as opposed to two. Maybe I'm missing the point here -- I don't know.
Hon. A. Petter: It's a matter of practice that ensures that the ministry, through the small business program, is treated the same way as other licensees, that logging plans cannot be approved until there are prescriptions and that those prescriptions are established and recognized through this section. Is the member suggesting that the small business program should be conducted on some other basis in which silvicultural prescriptions are disassociated from logging plans? If so, I'd like to know the rationale. The rationale should be that the small business program operates on the same basis, and that's exactly what's reflected here -- namely, that harvesting does not take place until silvicultural prescriptions have been prepared and established.
G. Wilson: This is my last comment on this. I agree with the minister; that's exactly what I'm saying. But this provides for the district manager or for the government -- for whatever reason -- to deny fibre that would go under the small business program by virtue of the fact that they haven't put together the silviculture prescription. What I'm arguing for is to say: "Look, if you're going to have a small business program undertake harvesting of that area, do the entire silviculture prescription as one unit. Don't isolate out that which is damaged by natural causes. Put it in place as a prescription for one licence."
Other than the fact that I'm a strong advocate for greater amounts of fibre going into the small business program and I wish this minister had done something about the vertical integration of the industry, which is another whole topic, I won't pursue it.
Section 22 as amended approved.
Sections 23 and 24 approved.
On section 25.
Hon. A. Petter: I move the amendment to section 25 that is in the possession of the Clerk. That amendment to proposed subsection (3)(b) deletes the words "section 41" and substitutes the words "Division 5 of this Part." I think the rationale for this amendment is well known to hon. members.
Amendment approved.
On section 25 as amended.
W. Hurd: I just want a brief clarification under section 25. Section 25(4) makes reference to the five-year silvicultural plan expiring one year from the date it takes effect. Can the minister clarify that? Does that mean that once the five-year plan is filed and has been in place for a year, it is subject to review in the four years remaining after filing with the Ministry of Forests?
Hon. A. Petter: The plan operates much like a five-year development plan. The five-year plan will lay out the prescription for five years, but it will be much more detailed with respect to the first and second years. Then after the first year, it's like a rolling plan. The next two years then get brought up to the same level of detail, and it evolves and rolls along like a five-year development plan. So it's similar to the five-year development plan process, which I'm sure the member is familiar with.
W. Hurd: Under section 25(6), once the plan is extended, which I assume would occur at the end of a five-year period, the plan may need to be amended to come in line with the new regulations. Could the minister advise us of the effects of that particular provision on existing silvicultural plans? Are we dealing with what amounts to a massive changeover? The implication under section 25(6) seems to be that there's going to be a grace period here, when the plan will be simply rolled over before it is subject to the full weight of the regulations and standards. Perhaps the minister could clarify that.
Hon. A. Petter: Again, it's the same process as the five-year development plan. You can extend the plan, but when you extend it, you have to ensure that the plan is brought up to speed. That's what this provision provides.
Section 25 as amended approved.
On section 26.
Hon. A. Petter: I move the amendment to section 26 that is in the possession of the Clerk. That amendment deletes "section 41" in subsection (3)(b) and substitutes "Division 5 of this Part" for the same reason as previously discussed in respect of other sections.
Amendment approved.
Section 26 as amended approved.
On section 27.
[ Page 12659 ]
Hon. A. Petter: I move the amendment to section 27 that is in the possession of the Clerk. It makes the same substitution in the proposed subsection(4)(b), by deleting the words "section 41" and substituting in their place "Division 5 of this Part."
Amendment approved.
On section 27 as amended.
W. Hurd: I just have a brief question with respect to section 27. Can the minister advise us whether this is the existing requirement of range licence holders in the province, or are we seeing any additional responsibilities for the holders of agreements under the Range Act? I'm just trying to discern what additional responsibilities there might be. The impression conveyed in discussions between range licence holders and the opposition is that the Forest Practices Code application to their licences will require additional resources and plans that they weren't previously required to submit. I just wonder if the minister could clarify that.
Hon. A. Petter: By and large, section 27 provides for the same regime of planning. With respect to rangelands, the same lands are applied.... The ministry will continue to assist in the preparation of range use plans, as it has done. The draft regulations that have been released and that will be discussed through the consultation process include some additional requirements to take account of other resource values, such as biological diversity. By and large, the framework here is the same, and the changes are ones that will take place under regulation and could take place under the current regime. The section itself provides for the same basic framework and approach with respect to the same land.
[10:00]
C. Serwa: Does this apply to grazing leases as well as grazing on Crown rangeland?
Hon. A. Petter: No, grazing leases are under Crown Lands.
Section 27 as amended approved.
On section 28.
W. Hurd: Just a brief clarification under section 28, which deals with the exemption for forest development plans. Section (1)(a)(iii) refers to "the removal of trees that have already been felled, from landings and road rights of way." Is that a salvage operation that's being referred to here? Perhaps the minister could just clarify that one term.
Hon. A. Petter: By and large, yes. There are some nuances, which I can ensure that staff provides to the member.
Sections 28 and 29 approved.
On section 30.
Hon. A. Petter: I move the amendments to section 30 that are in the possession of the Clerk and that I believe are in the possession of hon. members.
[SECTION 30,
(a) in the proposed subsection (1)(a) by deleting "or" at the end of subparagraph (ii), by adding "or" at the end of subparagraph (iii) and by adding the following subparagraph:
(iv) any use that is incompatible with the establishment of a free growing stand; , and(b) by adding the following subsection:
(5) The district manager may exempt a person referred to in section 22 from the requirement for a silviculture prescription if the district manager determines that(a) the requirement for the prescription results from Crown timber being cut, removed, damaged or destroyed in contravention of section 96, and
(b) the use of the area is incompatible with the establishment of a free growing stand.]
Amendments approved.
Section 30 as amended approved.
Sections 31 to 34 inclusive approved.
On section 35.
Hon. A. Petter: With respect to section 35, I move the amendment that is in the possession of the Clerk.
[SECTION 35, in the proposed subsection (1)(b) by deleting "approved under section 41." and substituting "approved or given effect under Division 5 of this Part."]
Again, this amendment deals with concerns raised earlier that reference be made to all sections within the division, not just section 41.
Amendment approved.
On section 35 as amended.
W. Hurd: I would like clarification from the minister here on section 35(1) with respect to a person who has a logging plan or silvicultural prescription and knows or who reasonably ought to know that performing the operation specified will not ensure that the results in the operational plan will be achieved. How does the ministry goes about making that kind of determination? Is it merely a case of doing field audits or comparing the plans on file with plans for adjacent cutblocks? This obviously implies some sort of auditing and monitoring mechanism. I wonder if the minister could just amplify on what exactly is intended by section 35(1).
Hon. A. Petter: Rather than an audit mechanism, it provides that if a person comes across a problem at the site, they have to fix it.
W. Hurd: So we're referring to an on-the-spot determination, by the licensee in this case, that there exists a problem that will prevent him from reaching the operational results specified in the plan. Are we dealing with some sort of a self-regulatory mechanism under this particular section? Is the licensee required under section 35(1) to report the difficulty that is uncovered? I'm just struggling with respect to this section and what the reporting mechanism is between the licensee and the ministry that would allow the government to make a determination that the individual was basically fudging the results. That's what this section seems to imply. Is it just the licensee's determination that something has gone wrong on the site and therefore needs to be remedied?
[ Page 12660 ]
Would the report be brought to the attention of the district manager? Would there be a reporting requirement under this section?
[M. Lord in the chair.]
Hon. A. Petter: This subsection puts the onus on licensees to come forward and seek an amendment to their plan when they find themselves in a situation where it is clear that their operations can not take place in a way that is consistent with the plan. That amendment would obviously have to be submitted to a district manager or an official designated under the appropriate sections of the legislation. So the ministry would be informed through the amendment process.
Section 35 as amended approved.
On section 36.
Hon. A. Petter: I move the amendment to section 36 that is in the possession of the Clerk.
[SECTION 36, in the proposed subsection (2)(b) by deleting "approved under section 41." and substituting "approved or given effect under Division 5 of this Part."]
This amendment is to the same effect as earlier amendments.
Amendment approved.
Section 36 as amended approved.
On section 37.
W. Hurd: I would like a brief clarification of section 37. It appears to grant the district manager wide latitude in making a determination that the existing silvicultural prescription is outdated. Since we're dealing with an act that codifies existing regulations, can the minister assure the committee that the district manager currently possesses the kind of regulatory authority to require a person to submit a new prescription and to declare the existing prescription to be no longer in effect? Is that a current requirement of any other act or statute that is on the books?
Hon. A. Petter: Yes, it's a current obligation found in the silvicultural practices regulations.
Sections 37 to 40 inclusive approved.
On section 41.
G. Wilson: In section 41(2), one of the concerns is that the requirements being put in place have cost implications. It says: "Before approving a plan or amendment the district manager may require the holder to submit information that the district manager reasonably requires in order to determine if the plan or amendment meets the requirements of subsection (1)." Subsection (1) says: "The district manager must approve an operational plan or amendment submitted under this Part if (a) the plan or amendment was prepared and submitted in accordance with this Act...and (b) the district manager is satisfied that the plan or amendment will adequately manage and conserve the forest resources of the area to which it applies." This comes back to the preamble statement that is causing some concern because of the latitude that is given to the district manager with respect to this. I am well aware of the existing practice, and I understand where the minister is coming from on this question, but it is important for us to recognize that when that kind of latitude is provided to a district manager, there has to be some kind of definition for reasonableness in that. There also has to be some acknowledgement of a series of factors that the company is going to have to look into.
One of the things that I find interesting is that in all of this planning -- all of the requirements, everything that the company has to file -- there is no mention in this act of safety as a primary consideration for planning and for a cut operation. Surely to goodness, safety of the worker is the absolutely first requirement -- I would have thought. But safety is not mentioned anywhere. I shouldn't say anywhere, because the minister is likely to find somewhere where it is, and then I'll be proven wrong, but it certainly doesn't seem to be a primary requirement. A lot of emphasis is given to matters of the environment, and I understand that, but could the minister talk a bit about what he would consider a reasonable requirement, given the latitude that is given to the powers of the district manager under section 41(2)?
Hon. A. Petter: With respect to the issue of safety, the Workers Compensation Act and the regulations are the major source of regulatory guidance. For that reason it is not reflected in the code, but the code is drafted in a way that takes account of those regulatory requirements.
In respect of reasonableness, I guess one can constantly ask what is reasonable in this. Much of the preoccupation of the courts is with determining whether conduct of administrative officials is or is not reasonable. The reason is that in any situation of administrative discretion, one can't predict with exactitude what kinds of discretion will be required; if one could, one wouldn't have to have discretion. District managers and forest officials are used to acting with this kind of discretion and doing so responsibly.
Reasonableness, to me.... I'm not sure I can help the member; one would have to have a particular situation. At the end of the day, the courts are well-equipped to determine what is reasonable. When I was in law school, I was told it was a question of what the person on the Clapham omnibus thought was reasonable -- although, given the particular focus of this act, that may not be the appropriate location to find reasonableness. But perhaps the person who has a familiarity with forest planning and operations would be the test of that, and the courts would take account of that. If I could provide the member with a clearer answer, it would no doubt be reflected in the legislation. It isn't, and therefore reasonableness is reasonableness.
G. Wilson: Section 41(4) is another area of some concern with respect to the discretion of the district manager. It says here: "Despite subsection (1), to the extent provided in the regulations a district manager may refuse to approve a logging plan or amendment that meets the requirements of that subsection if the district manager determines that the person submitting the plan or amendment (a) has previously contravened this Act, the regulations or the standards, and (b) has not taken all measures necessary to prevent or minimize the effects of the contravention...." Presumably, if the district manager makes a determination, that is a determination that there has been some form of contravention of the act, and
[ Page 12661 ]
therefore there has been some prosecution and verdict rendered on the basis of that contravention. Surely this doesn't suggest that the district manager is going to be given a pseudojudicial power to sit down and weigh evidence and decide whether somebody's in contravention of the act or not. Could the minister explain that?
Hon. A. Petter: Within the regime of the Forest Act, officials are charged with certain responsibilities. The district managers are charged with responsibilities to make these kinds of determinations because of their expertise in the area. This is one of the requirements that is provided to give effect to the notion of performance-based logging -- namely, that companies should not be able to look forward to future cutting rights if in fact they have not satisfied their previous obligations. At the end of the day, the discretion exercised by the district manager must fit within the discretionary ambit of the legislation; if not, then judicial review could obviously be sought through the courts.
[10:15]
But it's inevitable that judgments have to be shown, and in this case the judgment of the district manager is deemed to be the judgment of the official who's in the best position to determine what the correct balance between the licensee's obligations and the public interest is to achieve the desired result.
G. Wilson: I don't take any issue at all with the fact that performance-based logging is now going to be a fact of life in the province. Indeed, I would think the vast majority of companies would welcome it and say that's fine -- they're prepared to meet the new regulations in the code and are ready to perform to standard. The problem I'm concerned about is when you run into a dispute with a regional manager as to whether or not a contravention occurred, and as to the magnitude, effect and size of any contravention, and whether there had even been a breach of the act that would have led to some kind of charge. It says here: "...if the district manager determines that the person submitting the plan...has previously contravened this Act...." It doesn't say that anyone has been charged with an offence under this act, and that's a substantial difference here. If you're charged with an offence, I could say that makes some sense, because due process takes place in laying a charge under a statute of the province of British Columbia. But if a district manager determines that by whatever process they might have at their disposal, then I have some real concern. It's putting powers into the hands of a senior civil servant -- powers that shouldn't be there.
Hon. A. Petter: Well, I hear what the member is saying. The fact of the matter is that I don't think anyone wants a situation in which each and every contravention necessarily results in formal action being taken of the kind contemplated, but we still want the assurance that the company is going to comply. The compliance may be as simple as correcting the location of a culvert or whatever, but there needs to be some assurance that previous requirements have been adhered to. What this does is give the district manager some leverage in ensuring that that occurs. Should the district manager act excessively, then clearly there are opportunities, through principles of natural justice and administrative review, to take corrective action if a licence holder believes they're being treated unfairly by a district manager.
I would point out that under subsection (4) two requirements have to be met -- that of previously contravening this act, the regulations or the standards, and that of not having taken all measures necessary to prevent or minimize the effects of the contravention or to rehabilitate the affected area. A mere contravention by itself is not enough to trigger the district manager's discretion, and if the district manager sought to act on that alone, that in itself would be reviewable. The district manager would have to be of the view -- and have a basis for that view -- that not all measures necessary to prevent or minimize those effects had been taken, and would, no doubt, then prescribe what those steps are. That is very much the essence of what a district manager and forest officials must do.
I know there are concerns, interestingly, on both sides of this debate. There are those in the environmental movement who dislike district managers having discretion, because they feel that the district managers' inclinations will be too much in favour of timber harvesting. And there are those on the timber harvesting side who fear that the district managers may use their discretion in a way that's prejudicial to their interests. At the end of the day, a system that's workable has to accommodate discretion, and you have to have some faith in the officials to exercise that discretion reasonably. I believe that the correct balance here is set out in the legislation.
G. Wilson: The minister makes a good point that there is the conjunctive "and"; therefore two things have to apply. That's a good point, but the minister must also read back and see that the manager may refuse -- it doesn't say will refuse -- to approve a logging plan if the manager determines that the following.... So on the one hand there is discretion given to the district manager as to whether or not a contravention has occurred. There's nothing here that says charges have to be laid under the act. On the other hand it's up to the district manager to determine whether or not the district manager believes that all measures necessary to prevent or minimize the effects of contravention took place. Coming from a community that is heavily dependent on forestry and logging, I can tell you that many disagreements occur on a day-to-day or month-by-month basis between people actively involved in the industry and people actively involved in the ministry.
So on the one hand you've got a situation where discretionary powers are going to give the district manager almost a pseudo-judicial role in this question, where no charges have been laid, and on the other hand, even if the district manager determines that in fact this has occurred, there's no obligation. It's not obligatory that he or she, as the case may be, says that they can't have a new plan.
The fact is that we've got a situation here where on two counts inconsistency can take place within a local district and there has been no provision for charges being laid. Therefore there has been no consistency of application with respect to these particular permits. This is a very loosely and poorly worded section, and I would think the minister might want to consider tightening it up.
While the minister is studying his bill -- studiously trying to find ways in which he can tighten this section up -- let me raise one more point, and then I'll let it go.
It suggests that all of this can be done despite the approval of requirements of the district manager
[ Page 12662 ]
under section 41(1). In a sense, this gives absolute discretion to the district manager with respect to the licensing of plans for people that may have, in the view of the district manager, practised some kind of contravention of this act. In this act, no charge is laid, no proof is provided, and there is no onus of innocence until proven guilty. In this act, if the district manager thinks you're guilty, you're guilty. If the district manager decides it's not a big enough offence and you can have another permit, then you get one. But if the district manager thinks it's big enough that you can't, you don't.
The minister is telling us that the only recourse is to the courts. That's a very expensive proposition, especially for small businesses and small logging operators. I remind the minister that in second reading I said that this was going to be punitive to small logging operators, and here is one classic section where it will be. They don't have a bank of lawyers ready to fight a district manager who may be punitive beyond reason.
Hon. A. Petter: This is all subject to regulation. If the member feels that some tightening up should be done, it can be accomplished through the regulation power, and I would be happy to entertain his suggestions on that. I would point out that in many cases, these kinds of discretions are completely unlimited with respect to traffic violations or whatever. This section is far more circumscribed and defined than equivalent types of discretions in other acts. But I would be happy to look at some suggestions he might have for tightening it up through the regulation-making power, which can easily be accommodated under subsection (4).
W. Hurd: Subsection 41(5) causes a little more discomfort in that it makes reference to the fact that a district manager may make his approval "subject to a condition." I wonder if the minister could advise the committee of a circumstance whereby the regional manager would approve a management working plan or an operational plan and attach "conditions" to it. Would the conditions have a time limit on them? Would they be related to deficiencies in the plan that the manager might want to see addressed? Can the minister advise the committee of what we're dealing with when we talk about "conditions" here, and approval being subject to those conditions?
Hon. A. Petter: It's a very common occurrence presently that plans are approved subject to conditions to obtain additional surveys or to do some additional work. This simply recognizes that in the legislation.
W. Hurd: Could that apply, then, to the requirements that we dealt with in an earlier section? I'm having trouble finding it here, as this is a long document. There was a requirement for additional wildlife management plans and watershed management plans. Would the district manager be able to request that those plans be brought up to date and still have the latitude to approve the plan? Is that the kind of latitude we're dealing with under section 41(5)?
Hon. A. Petter: Yes.
W. Hurd: I have one additional question under subsection (6). It's the area requiring district manager approval for a designated community watershed. Would that apply to lands under the control of regional districts, where, as the minister knows, limited logging is taking place? Would they now have to file a plan with the district manager? All the way through this act, we've been dealing with the fact that we are encumbering private lands or lands that are owned by other levels of government. Or does a regional district watershed not fall under the definition of a forest management plan even though limited harvesting is taking place?
Hon. A. Petter: It only applies to forest development plans, and therefore only to those licence holders who are required to undertake forest development plans.
Sections 41 and 42 approved.
On section 43.
Hon. A. Petter: I would like to move the amendment to section 43 which is in the possession of the Clerk. It simply clarifies that the district manager can authorize someone to exercise the authority, so it's not just the district manager himself or herself.
[SECTION 43, in the proposed subsection (1),
(a) by adding "or a person authorized by the district manager" after "Despite section 41, a district manager", and
(b) by adding "or person authorized" after "if the district manager".]
Amendment approved.
Section 43 as amended approved.
Section 44 approved.
On section 45.
Hon. A. Petter: I would like to move the amendments in the possession of the Clerk. I hope they have been circulated to members opposite, along with the next batch of proposed amendments. These amendments delete the proposed subsection (2) and replace it with a new subsection (2), and also add a subsection (6) that is not currently contained within the section.
[SECTION 45,
(a) by deleting the proposed subsection (2) and substituting the following:(2) Subject to subsection (3), a person does not contravene subsection (1) if, with respect to the forest practice referred to in subsection (1),
(a) the person is acting in accordance with an operational plan or a permit issued under this Act or the regulations, or
(b) the person has been exempted from the requirement to have an operational plan and is acting in accordance with this Act, the regulations and the standards. , and
(b) by adding the following subsection:
(6) A person does not contravene subsection (1) or (3) if the person is
(a) acting in accordance with section 59(1),
(b) carrying out fire control or suppression in accordance with this Act and the regulations, or
(c) carrying out a controlled burn for the purpose of range improvement, or wildlife habitat improvement, authorized by the government.]
On the amendments.
[ Page 12663 ]
G. Wilson: It's a bit difficult to look at the significance of these, because we've only just received them. The minister has brought in a whole host of amendments, which probably means that the minister is listening to sound advice and making good amendments, and that's good.
Hon. G. Clark: They're good amendments.
G. Wilson: The Minister of Employment and Investment assures us that they're good amendments; I would hardly have expected him to say anything other than that.
[10:30]
Can the minister tell us exactly what the significance of subsection (2) of the amendment is as it applies to the forest practice referred to in subsection (1)? I think the existing wording would have suggested that anyway. I wonder if he might also talk a bit about what the significance of subsection (2)(b) is, where there's a discussion of a person who has been exempted from the requirement to have an operational plan and who is acting in accordance with the act. Could the minister could just flesh out those two?
Hon. A. Petter: The changes to subsection (2), in particular (2)(b), are there to recognize that there can be exemptions from the requirement to have an operational plan. That's now recognized in (2)(b). The paragraph (b) that was previously there, dealing with fire control or suppression, was thought to be better dealt with in a separate provision and subsection. That's why it has now been moved down into a separate subsection of the section.
Amendments approved.
On section 45 as amended.
G. Wilson: I just wonder, then, what the significance is of.... I apologize. Getting these things at the last minute, it's really difficult to look at the implications of them.
I'm assuming we can deal with subsection (6), which we've just added, under section 59(1). Can we talk about it here? It says: "A person does not contravene subsection (1) or (3) if the person is (a) acting in accordance with section 59(1)...." Yet there now seems to be a much wider latitude given with respect to fire control and suppression than was originally provided under section 45(2)(b), if we have to look forward to section 59(1). It just seems that much greater latitude is provided in this amendment. Maybe the minister might tell us just what the relevance of that additional section is.
Hon. A. Petter: I'm informed that it's correct that subsection (6) doesn't.... Subsection (6) is phrased in such a way as to make it clear that if damage occurs due to the fighting of fire -- that, for example, may result in slumping or sliding of land -- it is not to be considered a contravention of the act. That has been clarified through the rewording of subsection (6). So where fighting a fire results in or occasions slumping or sliding of land, or soil disturbance, for example, that's not to be construed as a contravention of the act. The rewording of that subsection helps to clarify that point.
Section 45 as amended approved.
On section 46.
G. Wilson: One of the matters here is with respect to soil conservation and permanent access. There is considerable debate in many communities as to whether or not access is desirable, particularly at the conclusion of cutting in areas. I notice that this particular section says that "a person who's carrying out a forest practice on an area under a silviculture prescription must not exceed the amount specified under the prescription for the maximum proportion of the area...that may be occupied by permanent access structures." This presumably implies road closures.
If there's a movement to.... I guess we can deal with this in a later section, when we get into 200-and-whatever. If the intention is that is going to be road closures or putting roads to bed as a general practice, I wonder if the minister might tell us how that relates to the need for joint use, such as recreational use and other kinds of activities that may involve accessing areas where logging has already taken place. I notice that in the earlier sections of this act, considerable emphasis is placed on the fact that there needs to be some kind of integrated management plan, yet this seems to preclude that with respect to soil conservation.
Hon. A. Petter: This section deals with roads within cutblocks that are available to become deactivated and become capable of growing trees again. It does not deal with some of the other roads between blocks or with roads that would provide access for recreation and other purposes, which I think is the member's concern. I don't think that concern is in any way undermined by this section and its focus on the particular roads in question.
Sections 46 and 47 approved.
On section 48.
W. Hurd: I have just a brief question with respect to soil rehabilitation. The requirement here is that "the district manager may, by written notice, direct the person responsible for the damage to take measures and to pay costs." I'm assuming that these are administrative penalties in connection with this section and that they don't apply to a later section with respect to fines. Can the minister just clarify that? Under section 48, and I guess to a lesser extent under sections 45 and 46, there is mention made of a contravention of the act. It clearly implies, first of all, that there's a requirement for the licensee to report the contravention to the ministry. One would assume that that voluntary compliance would not in any way mitigate other measures the ministry may decide to take under other sections of the bill. I guess we'll get into that when we get into penalties. I'd certainly welcome the minister's comment on the fact that we have a bit of a balancing act here, where the licensee is expected to promptly report the contraventions to the ministry. That obviously would open the avenue for additional administrative penalties. I would just welcome a clarification on that.
Hon. A. Petter: I think the short answer is that this is not an administrative penalty; this is really a compliance issue, where there has been some serious soil disturbance or damage. It ensures that that damage can be corrected. It's not a penalty as such; it's to ensure compliance with the standards.
[ Page 12664 ]
W. Hurd: There is a reference, however, to paying costs, which would imply that the district manager would have to determine those costs or make a reasonable assessment of what they would be. That clearly indicates some form of penalty. Is this just a language addition where it is recognized that costs are going to be involved in remediation and those are to be borne by the licensee, or does this section empower the district manager to make an estimation of costs and apply that to the remediation that would be required?
Hon. A. Petter: The payment of costs is clearly linked to costs that are necessary to rehabilitate the area. If that could be done by the licence holder itself, then obviously that could be undertaken without any payment in costs. If the district manager determines that it be done by some other means, the licence holder would then pay costs, but only those costs that are necessary for the rehabilitation of the area. That way, it is not a penalty; it is to ensure that the conditions required of the licence holder are adhered to, either by the licence holder undertaking the work itself or through the payment of costs to enable others to undertake the work on the licence holder's behalf.
Section 48 approved.
On section 49.
G. Wilson: Under "Exemption from rehabilitation" we notice that the district manager again has powers to exempt the government or the holder of a logging permit. It suggests that only if the district manager.... Again, this is a question of discretionary satisfaction where "there is insufficient area affected or occupied to warrant treatment." I have looked through the draft regulations, and I don't see where the guidelines are with respect to what would be considered insufficient area.
It says that if "treating the area affected or occupied is unlikely to restore soil productivity to a level necessary to achieve the results specified in the silviculture prescription for the area...." That may be the case. It may be that it can't achieve the results specified in the silvicultural prescription, but it certainly might be able to improve the soils in order to be able to rehabilitate to a certain level an active forest floor that might be equally as desirable or necessary with respect to biodiversity in the region.
I am a bit concerned that there again seems to be some discretion on the part of the district manager without any clear guidelines. I have looked through the draft regulations, and if I have missed them, the minister could quickly point me to where I could find them. But in the draft regulations I don't see where there are clear guidelines as to how that should apply.
Hon. A. Petter: The district manager does have discretion here, and that's inevitable, and to some extent it's desirable that it be the district manager. Under paragraph (a) it's simply a de minimis principle. That's very frequently found in legislation: if the impact is so little as to not warrant the effort, then it's not to be undertaken. Again, that's a matter of judgment, but a judgment that's commonly exercised by administrative officials and by courts in reviewing the activities of administrative officials.
[10:45]
On the other point, the desire here is not to encourage but rather to discourage rehabilitation work that clearly would not produce benefits. I would point out to the member that there is no requirement for exemption if, in fact, the results achieved would be desirable, albeit they fell short of the silviculture prescription. It's a discretion, and it allows the district manager, where they fall short of the silviculture prescription results, to make a judgment that in the event the work may not be desirable or economic it therefore should not be undertaken. If the member is saying that this is another judgment, then yes, it is. Good forest management requires good judgment, and that's why we have good district managers.
G. Wilson: I won't pursue that particular point, but I would suggest that the reason I raise this matter is that frequently we hear about a general concern with respect to rehabilitation of particular sites to make those sites productive for continued forest activity. Even though it may not meet the silviculture prescription, the minister must agree that one of the stated objectives of this particular act is to maintain biodiversity, to maintain a general ecological balance and to maintain an ecosystem dynamic in an area that is allowed, through whatever process, to regenerate through silviculture, where in fact there may be the planting of a particular species deemed to be market-driven and therefore viable for one particular licence holder. It might also recognize that there is a general rehabilitation necessary in order to prevent further erosion, damage and depletion of the soil.
It's easy to say that it doesn't make any economic sense because it's too small an area to worry about from a forest perspective. But if it's in an area that's upstream, for example, on reasonably steep-sloped areas that are going to impact on watercourses and water management areas, though it may be very small, continued erosion and neglect may make it bigger and bigger every year. That's my concern. We have a case in point, which hopefully won't go to court -- but may -- on exactly this kind of thing. Practices in the past were deemed to be relatively small and ineffective, except that 15 or 20 years of continued water erosion and slippage problems with respect to depletion of that soil have caused a significant problem for communities that are dependent on those watercourses. That's my concern, and I'd like the minister to address that.
Hon. A. Petter: Well, I think the member needs to put this in context. Currently we do not have what the act will provide through sections 48 and 49, and that is a presumption in favour of rehabilitation. There's a legislative presumption now in favour of rehabilitation. But clearly one doesn't want that presumption exercised in ways that will result in huge costs and little benefit; therefore some discretion has to be provided. There are circumstances in which it is determined that the work would result in little in the way of benefit either because the area is insufficient in size or because the productivity of the soil could not be restored to an adequate level, if and only if -- and I draw the member's attention to the word "only" in subsection (2) -- the district manager has some discretion. That's in the nature of things. But the general context here is a presumption in favour of rehabilitation -- a major step forward -- and some recognition that thoughtful district managers, understanding the very principles the member is talking about, will exercise an exemption from that presumption only in those circumstances where it makes sense to do so.
[ Page 12665 ]
Section 49 approved.
On section 50.
G. Wilson: I have one very quick question with respect to 50(1)(b), which talks about the use of fire only in accordance with the conditions of a burning permit and the regulations and standards. There has been a long history of complaints in communities with respect to slash burning as a process in forest rehabilitation. A lot of that happens as a result of the extensiveness of burns. It also happens because of the timing of burns. If you're using planned fire, there's a compliance with respect to regulations and standards set out with respect to the planned fire. I wonder if the minister can tell us -- and I recognize that there is going to be rehabilitation of soil management and all those kinds of things -- where in this act there are going to be provisions with respect to the impact of the burn on air quality and other things? Is that left to another act, and if so, which one?
Hon. A. Petter: In general terms the answer is that regulations that deal with this concern are in the Waste Management Act. I'm also aware that at least in a general sense there has been a lot of attention paid by the Ministry of Forests to the issue of slash burning, including efforts to try to get better utilization out of slash or what would otherwise be slash. I can tell the member that I am aware of steps that have been taken within the Ministry of Forests in the last year to try to restrict the unnecessary use of fire, but clearly some use of planned fire is still seen as necessary and desirable in order to deal with certain wastes. I'm informed that the Waste Management Act also has regulations that address this issue.
G. Wilson: I have just one last comment to the Minister of Forests. Cutting permits are required for this grand project called the Island Highway. I hope the Minister of Forests would make sure that any of the non-merchantable timber would be made available to local industry for pelletized fuels and presto logs. They're desperate for fibre, and if the minister could commit to that, it would stop the necessary use of planned fires in that particular project.
Hon. A. Petter: I can give a general assurance -- and it's reflected in the forest renewal plan -- that we as a government wish to ensure that all waste material that would otherwise be burned or disposed of would be utilized in the most economic and beneficial way. Of course, in some cases it is desirable to leave some degree of debris on the forest floor for regeneration purposes, but beyond that we want maximum utilization.
Section 50 approved.
On section 51.
W. Hurd: I'd like a brief clarification with respect to section 51, which really seems to broaden the definition of a "resource feature" and a "recreation feature," and which requires the licensee or the plan holder to immediately modify or stop forest practices. I wonder if the minister could just advise us whether this is a new regulation, or whether it has again been condensed or codified from any other existing piece of legislation. It clearly implies that there could be an inordinate delay, depending on how we define resource feature or recreation feature. First of all, I'm a bit baffled how such a feature wouldn't have been readily identifiable. Does this confer an additional burden of requirement on a licence holder or a plan holder?
Hon. A. Petter: This is a new provision that does place an obligation to protect resource features on a person carrying out a forest practice. I think the member's comment is well taken. Normally, resource features would be identified. This provision says that if an operator were to come across an aboriginal burial site, for example, which might not have been readily apparent but becomes apparent during the course of operations, there's an obligation on the licence holder to ensure that that feature not be interfered with by a forest practice. The forest practice would stop in the immediate vicinity of the feature, and the district manager would be advised of the existence and location of the resource feature so that it can be taken into account in the forestry operation. It is a way of ensuring that some features that might not have initially been apparent become apparent. There is a requirement to draw those to the attention of the district manager and not to interfere with those features when they do become apparent to operators.
W. Hurd: Just one further clarification, then. The section makes reference to a range development as a resource feature as well. I wonder if the minister could just advise the committee as to what's envisaged here. It seems highly unlikely that in the course of normal operations the licensee would uncover a range development or recreation feature that had not been previously identified. What kind of definition are we dealing with here?
Hon. A. Petter: An example is worth a thousand words, at least in my dictionary, and I will give an example for each. A recreation feature might be a cave, for example -- a spelunker's delight. If that emerges during the course of operations, that would be the kind of feature that might not have been readily apparently but becomes apparent, and it would fit that definition. A range development might be a waterline that may not have been previously apparent but becomes apparent, fencing that was obliterated, or whatever -- some development indicating range development.
Section 51 approved.
On section 52.
R. Neufeld: This section talks about limiting "noxious weeds to a level acceptable to the district manager." Maybe the member for Surrey-White Rock isn't quite up to par on noxious weeds, but I can tell you that in the north -- and it doesn't matter what part you go to -- the worst offender is the government. When we give the district manager the discretion as to how to deal with noxious weeds, I'd like to know just how far that discretion is going to go.
Hon. A. Petter: I note the member's concern. In fact, in talking with cattlemen and others, I've heard similar concerns. Certainly from the ministry's point of view, we have one of the most advanced weed control programs in the world. I know there's some concern that we could do better.
[ Page 12666 ]
R. Neufeld: The rest of the world is in trouble.
Hon. A. Petter: Well, there are noxious weeds, and there may even be some obnoxious weeds. What this section indicates is that within the code we recognize the need to deal with noxious weeds. I can certainly assure the member that district managers will be expected to take account of that concern and to work with the local cattlemen and others in dealing with it.
G. Wilson: This is a very serious problem in a number of areas. The member for Nelson-Creston has identified it as a serious issue, as well as the member for Peace River North and others. Given that this particular bill has a connection to the Ministry of Environment in terms of land use policy and integrated land management, could the minister tell us whether, by regulation, a broader set of requirements might be introduced with respect to the maintenance management or control of noxious weeds as a general part of this act? The comment from the member for Peace River North is absolutely correct in that government is indeed the worst offender -- there's no question.
Hon. A. Petter: The section refers to regulations and standards, and I would suggest that this is another issue. The standards document we've released will certainly prompt some discussion with the cattlemen's associations and others. I'm aware of the concern in general terms, but I could be more informed of its specifics and would welcome input from members as well as from some of the organizations that have expressed concerns to us all through the public consultation process that has commenced with respect to the standards and regulations.
Sections 52 and 53 approved.
On section 54.
R. Neufeld: Section 54 is on road use permits, and later on it gives the ability to the district manager to exempt a person or a type of load from a road use permit -- something that would "not...unnecessarily disturb the natural environment or cultural heritage resources." Could the minister expand on what that means?
[11:00]
Hon. A. Petter: I'm not sure what I can add to the section. The section provides that the exemption can be granted only where the exemption will not result in some major disturbance to the natural environment. So it's a limitation on the exemption power, again recognizing that there is discretion here. But the discretion should not be used in a way that would cause a major and unnecessary disturbance to the natural environment.
R. Neufeld: In my constituency, specifically Fort Nelson, an awful lot of off-highway roads are utilized by the logging industry for the purpose of logging, and by the oil and gas industry. They normally use the same roads because they're usually much better than the ones that are maintained by the government. Can I ask the minister how you go about using a road use permit? Can someone just use it? Is there a penalty? How are you going to control this? You're talking about a tremendous amount of traffic for three or four short winter months in the north. How's that going to be controlled?
Hon. A. Petter: Again, the purpose of the section, the requirement for road use permits, is to ensure that the use of roads does not result in major damage to the environment and loss of soil capability for future forest production. For that reason permits are required where major commercial or industrial use of forest roads is being contemplated.
Exemptions are allowed, but those exemptions will not be extended where there is a concern that the exemption could result in unnecessary disturbance. It's that kind of judgment that district managers will have to make. Clearly, members are aware that some of the major damage to streams, slopes and the forest land base itself has been occasioned by the construction of roads and the inappropriate utilization of roads that were built to standards that are inappropriate for some of the uses to which those roads have been put. That is what this section is all about.
R. Neufeld: I want to take this a little further; I don't want to belabour it. Maybe I am not getting it across to you. Let's say, for instance, 100 logging trucks are working 24 hours a day out of the Fort Nelson area, and about 300 trucks hauling service-rig equipment and related articles will use those off-highway roads -- not in both directions, because not everyone is radio-controlled, but they will use them in one direction coming back to town with loaded trucks. Do each one of these people have to go to the forestry office and get a permit before they can use that road? Is there a penalty? Are some of the things in this section really not needed? If you are hauling off-highway loads, I don't think anything else is going to hurt the road to start with. It seems to me to be a little.... I am wondering why it's even there.
Hon. A. Petter: I guess we would have to look at each situation, but if a number of different contractors are doing work for the forest licensee, the permit that licensee has for the use of those roads would be applicable to all of the work done by all of those contractors. Each of those contractors would not be required to obtain a separate permit. If you are talking about use of those roads by someone who is completely unrelated to the licensee, then if they were operating within a single framework of a single commercial use, presumably one permit could be sought by the operator in respect of all the contractors. But if you are saying there are 20 or ten or five different commercial uses being made by operators who use that road, then each one would, subject to the exemption power, have to obtain a permit if they were proposing to make commercial or industrial use of those roads and it were determined that that use could result in disturbance that could be damaging, then yes, a permit would be required.
R. Neufeld: I have one more quick question. Is that permit for each trip, or is that a permit that would last over a period of a season, monthly or weekly, or what? It's impossible to work it for each trip if you are talking about someone going to the forests office to get a permit for each trip.
Hon. A. Petter: I guess there are two points. The way the section is framed, there is a presumption in favour of road use permits, but that presumption will be overcome. If it's the kind of road in which the load requirements are not a concern about the road slumping in some way, then
[ Page 12667 ]
exemptions will be regularly granted. This will not be a problem. Similarly, if it is a road in which permits are required, each trip will not require a permit. A period of use and a kind of use for a period of time will be required. The purpose is not to regulate unnecessarily. It is to give ministry staff the ability to regulate with respect to roads that may cause problems if inappropriately used, and until then, license those roads for ongoing use in a way that doesn't cause those kinds of problems. This is not meant to create administrative or regulatory burdens unnecessarily.
Section 54 approved.
On section 55.
W. Hurd: I am intrigued with respect to section 55(3), which allows the holder, with the prior consent of the district manager, to close a road or restrict its use where -- referring back to section (2) -- it might endanger life or property. I have a point of clarification. Would this measure have the effect of preventing blockades of roads by demonstrators? It seems to imply that there is a triggering mechanism here to enable the holder of a licence to seek remediation under this Forest Practices Code to prevent blockades, work stoppages and demonstrations, for which previously the only remediation was through the courts. Could the minister confirm whether or not a licence holder could actually seek to restrict the use of the road under this Forest Practices Code instead of going to court, which, as the minister knows, is a fairly expensive, contentious and controversial measure at times?
Hon. A. Petter: This section, the wording of which actually tracks what is in the current Forest Act, is designed to deal with safety concerns. The one change is that it provides the district manager with some supervisory authority to ensure that the closure of the road is in fact occasioned in a manner that's consistent with the requirements of the act. But the actual wording of the criteria is in line with what's currently provided for in the Forest Act.
W. Hurd: With respect to my original question, the minister is saying there is no remediation for a licence holder whose workers may come to work in the morning and face a blockade, and who would clearly have their property endangered because they couldn't access timber which they were licensed to harvest. The minister is saying that there would be no redress under this particular section. It would be business as usual: applying to the courts for an injunction -- hopefully not having the minister write a letter to his constituents advising that the government has no involvement in such a measure.
I just offer the minister the opportunity to clarify this section and perhaps avoid that unpleasantness, which, as he knows, was so controversial in the south Island.
Hon. A. Petter: I don't contemplate that this section would be utilized in that way, and the member is well aware that there is injunctive relief available in those kinds of circumstances. This section is designed to deal with safety issues and danger to life and property. I think the member is giving it a creative reading, which perhaps can be attributed to the creative hour at which we're debating these matters.
Sections 55 and 56 approved.
On section 57.
W. Hurd: This is a brief request for clarification under section 57(2). Could the minister advise the committee of an example of circumstances where the use of a forest road would cause significant damage to the road or the environment? Is that related strictly to loads on the logging road or...? I'm trying to get a clarification of how using the road could contribute to significant damage to the environment.
Hon. A. Petter: No, it's not just related to loads, but to weather. In spring breakup, for example, or in adverse weather conditions, a road may become unstable, and its use could jeopardize the forest environment as a result of weather and seasonal conditions.
W. Hurd: I've one further clarification, then. Would the licensee or user of the road be required to make that determination on the spot, or would it be subject to regular inspection by the district manager? Is the onus on the user of the road to determine when he or she or the company, or whatever the case might be, might be causing significant damage to the environment? Where is the compliance factor here?
Hon. A. Petter: The section makes it very clear that the decision is that of the district manager: "...the district manager may...." One would hope that forest operators who are aware of unstable road conditions would take their own precautionary actions and draw that to the attention of the district manager. But the legalistic answer is that it's a discretion of the district manager, not an obligation of the licence holder under this section.
Sections 57 to 62 inclusive approved.
On section 63.
Hon. A. Petter: With respect to section 63, I move the amendment that is in the possession of the Clerk.
[SECTION 63,
(a) by deleting the proposed subsection (1) and substituting the following:(1) A person who uses a road under the authority of a road permit, a cutting permit or a special use permit must maintain it until
(a) the road is temporarily, semi-permanently or permanently deactivated,
(b) a road permit or special use permit for the road is issued to another person, or
(c) the road is declared a forest service road under section 91.1(5) of the Forest Act.
(1.1) A person who is required to maintain a road under subsection (1) must maintain it in accordance with the requirements of
(a) any forest development plan or access management plan,
(b) the regulations and standards, and
(c) the road permit, cutting permit or special use permit, , and
(b) in the proposed subsection (4), by deleting "scheduled for deactivation" and substituting "deactivated".]
On the amendment.
W. Hurd: Since the committee is seeing many of these regulations for the first time and they're coming at us in
[ Page 12668 ]
waves, I wonder if the minister would perhaps amplify a little for the committee on the explanation or rationale for what appears to be a very significant amendment to section 63. I wonder if the minister could just provide some clarification for the committee.
[11:15]
Hon. A. Petter: I don't think the amendment is all that significant. It clarifies the nature and duration of the maintenance that is required under the section and sets it out in more specific terms.
W. Hurd: The one section I was hoping to get a little more clarification on is the deactivation requirement, which I assume would, in case it's a permanent deactivation.... I wonder if the minister could advise us whether that triggers other requirements in the code with respect to trenching and other measures that would require the road to be protected and ultimately returned to a productive growing site. Is this particular requirement basically tying into future sections with respect to road deactivation? I'm just seeking some clarification for that particular amendment (1)(a) by the ministry.
Hon. A. Petter: The actual requirements around deactivation are dealt with in the next section, section 64. We can discuss those there. The new subsection (1) provides that "A person who uses a road under the authority of a road permit, a cutting permit or a special use permit must maintain it until (a) the road is temporarily, semi-permanently or permanently deactivated...." For further reference to deactivation, one then has to go to section 64.
Amendment approved.
Section 63 as amended approved.
On section 64.
Hon. A. Petter: I move the amendment to section 64 that is in the possession of the Clerk and has been circulated.
[SECTION 64,
(a) in the proposed subsection (1) by deleting everything before paragraph (a) and substituting "Subject to subsection (6), a person who uses a road under the authority of a road permit, cutting permit or special use permit, or the government for a forest service road, must deactivate the road temporarily, semi-permanently or permanently, or a combination of temporarily, semi-permanently or permanently, as required by, and in accordance with".
(b) by deleting the proposed subsection (2) and substituting the following:
(2) A person who uses a road under the authority of a road permit, cutting permit or special use permit, or the government for a forest service road, must ensure that, from the time deactivation of the road begins until the road is permanently deactivated, the area that has been deactivated meets prescribed requirements.
(2.1) After permanent deactivation of a road under this section, a person who used the road under the authority of a road permit associated with, or a cutting permit issued under, a tree farm licence must maintain, in accordance with the regulations, the stability of the area that was deactivated.
(2.2) After permanent deactivation of a road under this section, other than a road referred to in subsection (2.1), the government must maintain, in accordance with the regulations, the stability of the area that was deactivated. , and
(c) by deleting the proposed subsection (6) and substituting the following:
(6) A person's responsibility for permanently deactivating a road on Crown land ceases when the district manager notifies the person in writing that, in the opinion of the district manager,
(a) future uses of the road by others will preclude permanent deactivation, or
(b) the road has been permanently deactivated.]
On the amendment.
W. Hurd: The minister is being somewhat judicious when he uses the term "circulated." It was circulated some five minutes ago, and landed in a package of amendments. So in the interest of expediting this section.... It's really a complete rewrite of the section. Could the minister provide some sort of rationale for the rather significant changes that have been built into this complete rewrite of the section? I would welcome any additional comments the minister might want to make.
Hon. A. Petter: The amendments are not really different from the original wording. They seek to clarify the original wording by specifying in greater detail the requirements around deactivation: how to deactivate, when to deactivate and the circumstances with respect to deactivation. I can assure the member that they are consistent with the general thrust of the section as previously read, except insofar as they clarify the intent of that section.
W. Hurd: Can the minister advise us whether the amended section 64 applies to the small business enterprise program, where the ministry assumes total responsibility for not only planning and constructing the roads, but also, I would assume, for deactivating them? Are we dealing with an omnibus section here that applies to all roads that are constructed, managed and maintained in the province, across the board regardless of the type of licence we're dealing with?
Hon. A. Petter: The answer is yes. The wording in the proposed language that has been circulated refers to "or the government." You'll find those words repeated. That indicates the government is clearly bound by these requirements along with other licence holders.
Amendment approved.
Section 64 as amended approved.
Sections 65 and 66 approved.
On section 67.
W. Hurd: This moves us into an important section of the bill referring to timber harvesting. Again, could the minister advise the committee whether we're dealing with a codifying of existing regulations, or if there is, in fact, a new requirement under the Forest Practices Code with respect to the general provisions governing timber harvesting in the province?
Hon. A. Petter: Again, the answer is mixed. It generally sets out the same approach we now have. It does
[ Page 12669 ]
incorporate some new standards, but the section, by and large, codifies the provisions that currently exist, subject to the addition of those new standards.
Section 67 approved.
On section 68.
Hon. A. Petter: I move the amendment to section 68 that is in the possession of the Clerk. The import of the amendment is to delete the proposed subsection (1) and substitute the subsection (1) that has been circulated to members.
[SECTION 68, by deleting the proposed subsection (1) and substituting the following:
(1) A person may only build an excavated or bladed trail if it is identified in a silviculture prescription, logging plan or special use permit.]
On the amendment.
W. Hurd: The minister will be aware of submissions that the ministry has received with respect to the effect of the Forest Practices Code on trail construction generally. I know there has been an expression of concern from the Outdoor Recreation Council of British Columbia, and I'm not sure whether this is the section that has caused their concern, or whether it's a future section in the act. It appears from this section that an excavated or bladed trail can only be constructed if it falls within the terms of a forest development plan. Perhaps the minister could clarify whether the concern being expressed by some of the environmental groups with respect to trails has any relevance to this section. Or is that something we'll be eyeballing in the future as this debate progresses with lightning-like speed?
Hon. A. Petter: I think the concern the member is referring to is more relevant to section 102 than to this section. You may want to write it down, because you don't want it to whiz by.
Amendment approved.
Section 68 as amended approved.
Sections 69 and 70 approved.
On section 71.
Hon. A. Petter: I move the amendment to section 71 that is the possession of the Clerk. Again, members will recall that this is the same amendment that we agreed to earlier on, and it's there to make clear that the entire division is to be referred to, not just the one section.
[SECTION 71, in the proposed subsection (2) by deleting "section 41," and substituting "Division 5 of Part 3."]
Amendment approved.
Section 71 as amended approved.
The Chair: Shall section 72 pass?
Interjections.
On section 72.
W. Hurd: I didn't get up fast enough on section 72, but I can see that the ayes outnumber the nays here.
I wonder if I could get an explanation from the minister with respect to whether this deals with any significant changes on the expiration of an agreement under the existing regulations, or whether it is again just a principle of codifying existing regulations, because it appears to grant fairly significant power to the government to take action in the event of an expiration of a plan. I would welcome a clarification from the minister on that point, and on whether any additional powers are being conferred here on the government once any type, I would assume, of forest development plan, silvicultural harvest plan or any other plan is terminated.
Hon. A. Petter: I think the member will be pleased to note that the purpose of this section is in fact to increase obligations upon government. It makes it clear that where required work cannot be carried out by the licensee, the government then assumes the obligation to ensure that the work is performed. So it places an obligation on the government to carry out required silvicultural activities in cases where there is no one else in a position to do the work, even though the obligation to do the work was not initially that of the government. This is one of the features in which government is assuming greater responsibility under the code.
W. Hurd: Can the minister advise us whether any additional powers with respect to the small business enterprise program are conferred by this section? With respect to the obligations of the Crown under that program, does this merely confirm those rights and responsibilities? Are we dealing with any significant change in this section with respect to the small business program?
Hon. A. Petter: No, we're not. What the government is doing is taking on additional responsibilities here. For the most part, the situation would not occur under the small business program. It would occur under situations where a non-renewable forest licence has expired, the obligations have not been fully performed and the licence holder is no longer in the picture or is no longer capable of performing the silviculture work that was required. Then the government assumes responsibility to take that work on, and that provides some measure of security to the public where an operator may go bankrupt or may no longer be able to undertake the work. The government will ensure that that work is done if not by the licence holder, who should have done it, then by government itself.
Sections 72 to 74 inclusive approved.
On section 75.
G. Wilson: I just want some clarification from the minister with respect to "'forest' includes all of the following: (a) forest land, whether Crown land or private land...." I'm assuming that's consistent with the Forest Act with respect to those private lands that may be under harvest and that it doesn't refer to fee simple private land. That's an assumption which I hope the minister will clarify.
[11:30]
Then it goes on to say: "...(c) Crown land or private land that is predominantly maintained in one or more (i) successive stands of trees, (ii) successive crops of forage,
[ Page 12670 ]
or (iii) wilderness." Maybe the minister could tell us what private land might be deemed wilderness.
Hon. A. Petter: Well, the intention here is to provide protection of forest resources, including private resources. The lands that are contemplated here are not limited to those referred to earlier but include all private forest lands that meet these definitions. I believe the current situation under the current act is that it's deemed good public policy to provide protection that extends beyond simply Crown lands or a very limited category of private lands. All private forest lands that may be in need of fire protection services are eligible. But there's no change from the status quo here insofar as I'm aware.
G. Wilson: I'm not sure that that's entirely so. If we're dealing with lands that may be deemed Crown forest, or even private lands that may be forested lands which fall within fire protection districts, there are different regulations that will apply to those lands that are outside. Notwithstanding that, even on those lands that may be private and forested lands where fire occurs and a response is made, clearly we have to make some distinctions as to what the responsibility or obligation of the private land owner is as opposed to what the obligation will be for the Crown. So I'm not so sure that that definition is quite that simple.
Hon. A. Petter: I'm informed, hon. member, that if this definition varies at all from the current Forest Act with respect to protection, the definition of private land is, if anything, slightly narrower. So there is no change here. The intention is to provide protection services on essentially the same basis as they are currently provided to those who hold private forest land as well as to Crown land and land that's in various tenure and licence arrangements.
Sections 75 and 76 approved.
On section 77.
Hon. A. Petter: I move the amendment to section 77 that is in the possession of the Clerk. That amendment has the effect, within the proposed subsection (2), of deleting the word "only."
Amendment approved.
On section 77 as amended.
G. Wilson: I have one quick question on this with respect to the designation of these permits. There has been a considerable lack of consistency in terms of the application of these permits in a number of different communities. I wonder whether, in this act, there is an intention to move toward a standardized process for issuance of permits. Once again I want to emphasize the fact that this is an area of major concern in a lot of communities in British Columbia. Part of the reason is that there is no regulation with respect to the issuance of burning permits, especially those issued through the Ministry of Forests, that takes into account things such as local weather conditions -- inversions, wind, wind direction -- and all those kinds of associated things that can create a great deal of hazard.
Hon. A. Petter: I certainly think the provision for regulations is sympathetic to the direction of providing greater standardization. I think one wants to be careful that whatever standardization is brought about by the establishment of regulations and standards does not undermine the need for taking account of local conditions and the sensitivity to those conditions that officials in district offices have. But by placing this in the legislation, with a reference to regulations, it does enable us to move towards a more standardized approach. I don't want to mislead the member. I don't think there is a vision here of some kind of cookie-cutter regulatory framework, at least not at this stage.
Section 77 as amended approved.
Section 78 approved.
On section 79.
W. Hurd: I have a brief question under section 79, which appears to again require the licensee to make some sort of assessment with respect to fire hazard, and I'm certainly aware that the district manager always had the ability to declare a closure or to assess a fire hazard.
This section appears to imply that there's now an additional responsibility by the "person who engages in a prescribed activity related to timber harvesting." Could the minister advise us whether, under section 79, there is now an additional requirement by the licensee to make their own determination about fire hazard and then, of course, duly report that to the ministry? Is this an additional requirement that's inherent in the Forest Practices Code, or has it existed previously?
Hon. A. Petter: It varies from the existing requirement. As I understand the existing requirement, it places a generalized obligation to remove slash and bush, etc., without making an assessment as to whether it's a hazard. This speaks more directly to the purpose that one would hope it would speak to -- namely, the identification of a fire hazard. And where there is a fire hazard, there's an obligation to take action.
So it's a different obligation than currently exists. It's an obligation that's more directed towards the value that one would want forest licensees to protect -- not the blanket removal of material but the identification of material that could pose a fire hazard and action directed at that material, as opposed to some blanket requirement.
W. Hurd: So the condition does not relate to environmental circumstances or weather conditions that might constitute an extreme hazard. That determination continues to lie with the Ministry of Forests. We are dealing specifically with a pile of slash or some other type of combustible material on the land base which, if left untended, could result in a fire. That's the physical evidence that the licensee is required to report to the ministry if it's so required.
Hon. A. Petter: I'll resist the temptation to provide a fuller explanation; I'll simply say yes.
Section 79 approved.
On section 80.
[ Page 12671 ]
Hon. A. Petter: I move the amendment to section 80 that is in the possession of the Clerk. The effect of the amendment is, in the proposed subsection (1), to delete the words "must abate and remove the fire hazard in accordance with the regulations," and substitute the words "must abate, remove or both abate and remove, the fire hazard as required by, and in accordance with, the regulations." The meaning is fairly clear. It provides for either event or for both events to take place, where previously it was just both.
Amendment approved.
On section 80 as amended.
W. Hurd: Mention is made in section 80 of the limitations on private land, which I would assume refer to all private land, whether it is a managed forest area or not. When we talk about private land under this section, are we talking about private land that is within a recognized forest management unit?
Hon. A. Petter: The short answer is that with respect to the private land issue, the provision, by and large, tracks what is currently required to ensure that fire hazards are averted with respect to private and Crown land.
R. Neufeld: Subsection (3) says: "In accordance with the regulations, a landowner and tenant must abate and remove a fire hazard that exists on private land as a result of insects, disease, wind, fire or other causes." Would that section apply to government also? I am thinking mainly of diseased forest that is laying down, or something that could cause a fire hazard, as far as a regional manager is concerned. As long as that section covers Crown land and applies to the government the same as it does a private person.... You could have a farmer, for instance, or someone with range, because in the definitions we deal with Crown range or range on private land. I'd like you to further explain exactly the responsibilities there.
Hon. A. Petter: By its own terms, subsection (3) is directed at private land, and therefore wouldn't apply to Crown land and the government in respect of Crown land. Having said that, one of the functions of the Ministry of Forests and the protection branch is to abate and remove fire hazards that exist on Crown land, and that's why we have a protection branch. While the section speaks specifically to private land, that's only because there is a presumption -- and correctly so -- that the government, through the Ministry of Forests and its protection branch, has a world-class fire capability and will continue to act to ensure that that capability is used to protect Crown land.
R. Neufeld: I appreciate what the minister is saying; I'm just a little concerned. We even deal with wilderness. Let's say someone has a farm, and maybe quite a number of sections of land have not been cleared, but maybe there's an awful lot of beetle kill or bug kill. You could have an awful lot of timber laying down. Is the intent of this code to go in and have those people clean up those areas? Even though we have a good fire record, if you look around the province, there's lots of Crown land that has the same problem.
Hon. A. Petter: I guess the simplest way to reassure the member is to say that this provision is essentially consistent with what's currently in sections 117 and 119 of the Forest Act. Through regulation and policy, the requirement will not be imposed unduly; it will be consistent with current kinds of practices.
Section 80 as amended approved.
[11:45]
Sections 81 to 85 inclusive approved.
On section 86.
Hon. A. Petter: I move the amendment to section 86 that is in the possession of the Clerk, which reads:
[SECTION 86, by deleting "report the fire to a forest officer or peace officer," and substituting "report the fire to a regional manager, district manager, designated forest official, peace officer or person who answers a forest fire reporting telephone number."]
That is to provide more reasonable avenues for reporting and ensure that citizens are able to discharge their responsibilities in a timely and efficient manner.
Amendment approved.
Section 86 as amended approved.
Section 87 approved.
On section 88.
Hon. A. Petter: I move the amendment to section 88 that is in the possession of the Clerk.
[SECTION 88, in the proposed subsection (3) by deleting "reporting number" and substituting "reporting telephone number."]
This amendment is just for those sticklers who want to be sure that when we say "reporting number," we're talking about the telephone as opposed to some other numerical means of communication.
On the amendment.
G. Wilson: I can't resist saying, at quarter to midnight and when 73 amendments have come into this amazing act, that we're worrying about sticklers and a "reporting number," and we've just passed an amendment that says we can report a fire to anyone who answers the telephone. I mean, that could be an infant.
I think the amendment is good, and I think we need to get through this stuff.
Amendment approved.
Section 88 as amended approved.
On section 89.
W. Hurd: I just have a brief question about section 89(2): "If the government causes fire control or suppression operations to be carried out on private land under subsection (1), the reasonable cost of the operations is a debt due the government by the owner of the land...." I wonder if the minister could, first of all, clarify whether that represents a new burden on private land holders or whether that currently exists in the Forest Act. The wording of the section seems to be rather onerous. It implies that the government could access private land for the purpose of fighting a fire and that the bill would be
[ Page 12672 ]
payable to the government by the owner of the land. Is that basically the purpose of this section?
Hon. A. Petter: Subsection (2) incorporates section 123(2)(b) of the Forest Act, with only minor wording changes. So it is essentially the current obligation under current legislation.
G. Wilson: I recognize that it does come under section 123, as the minister just suggested. Subsection (1) talks about it being necessary to control or extinguish a fire. I wonder if this would also apply where access through private land is made to access a Crown forest that is burning. Does that same burden apply to the owner of Crown land, where there is access and where damage is clearly caused through firebreaks or whatever, or does it only apply to private land that is actually already on fire?
Hon. A. Petter: If the member can hold his fire for one more section, he will find that section 90 deals very specifically with the issue of access across private land.
Section 89 approved.
On section 90.
G. Wilson: The question I asked under section 89, I now ask under 90.
Hon. A. Petter: This incorporates section 123(3) of the Forest Act, with only minor wording changes. As the member will see, it provides that a person acting on behalf of government can "enter on private land for the purpose of carrying out fire control or suppression operations on adjoining land." In that event, the government must compensate the owner and any tenant for damage caused. So the compensation provision is somewhat different -- and therefore acceptable.
W. Hurd: Just a brief clarification with respect to this section. The minister will be aware that there was a recent case in Canal Flats involving an ombudsman's ruling, after some length of time, on damages that the Crown should pay. At this late hour I can't recall the exact circumstances of the case. But clearly this particular section wouldn't apply to redress for a private land holder unless the government was in some way responsible for setting the fire -- under the small business forest enterprise program or something else. I wonder if the minister could clarify that, with respect to damage that may occur to private land as a result of activity the ministry may undertake in connection with a prescribed burn or of any other activities they might be undertaking on the land base.
Hon. A. Petter: I imagine that the member is talking about the Swiss Fire situation. I am very pleased to report that my ministry has provided compensation -- in fact, it was announced in the last two weeks -- for the victims of that fire, as a result of, I think, some misadventures under previous governments, which, in our view, justified compensation. Indeed, the ombudsman requested compensation. But that's a very different circumstance. That had to do with a circumstance in which private property was damaged as a result of a fire, not as a result of fire personnel seeking access across Crown land. That raises the question: when should the Crown have an obligation to compensate private land holders due to fire and actions that were or were not taken by government officials? It's a very different issue, and I'd be happy to address it under different circumstances. But it's not really germane to this section.
[M. Farnworth in the chair.]
W. Hurd: Could a potential scenario occur, then, where the ministry conducted a firebreak on private land -- in other words, a burn in advance of an advancing fire on Crown land? Is that a circumstance that could occur or that has occurred in the province? If so, would there be a recognition under section 90 of alienation of timber values on private land, aesthetic degradation, or anything else that might occur?
Hon. A. Petter: Assuming that the member is talking about the construction of a firebreak that is done appropriately on private land in order to protect against fire, then this section would apply and compensation would be due. The other issue of negligence or secondary damage that results from a firebreak inappropriately done is more.... The Swiss Fire situation is different. But if private land is accessed to undertake a firebreak, that would obviously be compensable under section 90(2).
Section 90 approved.
On section 91.
Hon. A. Petter: I move the amendment that is in the possession of the Clerk. In the case of subsection (2), the amendment would strike out the words "the district manager" and substitute the words "a designated forest official." This is because, in the case of fire protection, the district manager may not be the most appropriate official, and therefore some flexibility is provided to ensure that other officials can be designated for the purposes of this section.
On the amendment.
W. Hurd: I would welcome a clarification on whether that parallels the Forest Act as well. It was my impression that that authority has consistently and always rested with the district manager. I wonder if the minister could clarify whether the amendment in any way parallels existing legislation, or whether it is deemed, by virtue of the additional staff the ministry is adding at the district level, that more people should have the latitude to deal with fire-preparedness responsibilities or to monitor the people engaged in this activity on the land base.
Hon. A. Petter: The preparedness plan referred to in this section is a new requirement, and therefore there is no analogous reference in the current act. I would point out to the member -- and we had a fairly extensive debate in estimates -- that there is a reorganization underway. Part of that reorganization includes a relocation and reorganization of fire preparedness services to bring those services more efficiently and more closely into correspondence with fire hazards. As a result, the current relationship of forest districts to fire preparedness may not be exactly the same in the future. For that reason as well, it's desirable to ensure that there is some flexibility here to designate
[ Page 12673 ]
appropriate officials, who may or may not be, depending on the circumstances, the district manager.
Amendment approved.
Section 91 as amended approved.
Sections 92 and 93 approved.
On section 94.
W. Hurd: I have a brief question with respect to the requisition of facilities, equipment and personnel. I would assume that some provision is made in a state of emergency for a designated forest official to make that kind of requisition. Could the minister clarify whether any additional powers are being conferred here with respect to this situation, which would be carried out only in serious emergencies? I wonder if he could clarify whether we are dealing with a different requirement here in any way.
Hon. A. Petter: The answer is no.
Sections 94 and 95 approved.
On section 96.
Hon. A. Petter: I would like to move the amendment to section 96 that is in the possession of the Clerk. In this case the amendment would alter proposed subsection (1)(c) by deleting the words "a mineral claim or a 2 post claim" and substituting the simpler words "a claim."
Amendment approved.
Section 96 as amended approved.
On section 97.
W. Hurd: Again, this is a question relating to private land adjacent to Crown land. Could the minister clarify whether any additional burden is being placed on private land holders with respect to section 97? It would appear to be straightforward. But is there a requirement to furnish this information to the ministry or just to make sure that the occupier of the Crown land in the immediate vicinity is aware of the boundaries? Is there a reporting function to the ministry with respect to section 97?
Hon. A. Petter: No, there isn't. This section merely incorporates section 138.1 of the Forest Act, with some minor wording changes.
Sections 97 and 98 approved.
On section 99.
Hon. A. Petter: I would like to move the amendment to section 99 that is in the possession of the Clerk. That amendment adds at the end of proposed subsection (1) the words "unless the construction or occupation is authorized under another enactment" -- making clear that if it is so authorized, then that is taken into account -- and also deletes the proposed subsection (3), which is dealt with elsewhere in the act now.
Amendment approved.
On section 99 as amended.
R. Neufeld: I'm wondering whether the minister is able to clarify.... In some of the areas around Fort St. John, the Rocky Mountain Trench and some of the lakes out there, if there are cabins or something to that effect, I'm worrying about whether this section would make it possible for the government to go out and destroy those. I guess the question is whether there is more onus now than there was before.
[12:00]
Hon. A. Petter: This section simply incorporates section 140 of the Forest Act, which has been in place since 1979.
Section 99 as amended approved.
Section 100 approved.
On section 101.
Hon. A. Petter: I would move the amendment to section 101 that is in the possession of the Clerk. That amendment simply deletes the proposed subsection (3), which is now dealt with in section 118.
Amendment approved.
Section 101 as amended approved.
On section 102.
Hon. A. Petter: I would like to move the amendment to section 102 that is in the possession of the Clerk. Again, that deletes the proposed subsection (4), which is now dealt with later in the act under section 118.
Amendment approved.
On section 102 as amended.
W. Hurd: My question from earlier in the evening still stands with respect to trails. I know the minister has received many more letters than the one I have in my possession. I'd certainly welcome the advice of the minister on this section as to whether trails that are carved out of Crown land by environmental groups -- or anyone else, for that matter -- fall under the provisions of the Forest Practices Code and now have to receive approval from the ministry in order to proceed.
Hon. A. Petter: I think the short answer is that good forest management requires management with respect to all potential disturbances, whether they're occasioned by those who have motivations that are environmental or those who have motivations that are economic. It matters not. If something other than a passive use of the forest is contemplated -- such as some construction that could potentially alter the forest environment -- that clearly requires some authorization and approval. That's recognized in respect to trail or recreation construction, as it is with respect to other modifications of the forest for other purposes under the act.
[ Page 12674 ]
W. Hurd: I really believe, however, that we have to struggle for a better definition of a trail than what currently exists. I think the concern being expressed by the outdoor groups is that if a trail, according to their definition, now falls under the full weight of the Forest Practices Code, there's a whole measure of administrative and also potentially criminal penalties. There's the potential involvement of the Forest Practices Board if there's a complaint. I'm sure it's not the intention of this bill to subject a forest trail that might be used by a few people with backpacks, one at a time, to the full weight of regulation under the code.
I would offer a plea on behalf of the environmental groups that have contacted the opposition -- and I'm sure they have also contacted the ministry -- with respect to a more accurate definition of a trail and why the definition of a trail that they have should now be subject to the full weight of the Forest Practices Code.
Hon. A. Petter: I think this provision must be seen in light of the harm it is designed to address, and that is the fact that trails inappropriately constructed or constructed in an inappropriate place can pose safety risks, can create access to dangerous areas that are not suitable for public use, can cause unpredictable hazards if they are built and then abandoned without maintenance, and can lead to erosion and drainage problems. Obviously what's contemplated is a benign trail, if I can put it that way. With ones that would not result in those consequences, there ought to be no difficulty whatsoever in that trail taking place. Indeed, it may be highly desirable for it to take place. It's simply a recognition that some trail construction, like skid roads and other constructions, can have damaging consequences, and we need to ensure that those damaging consequences do not occur.
As for the definition of "trail," I'm sure the courts will have regard for reasonable definitions as defined through dictionaries and other instruments. Ministry officials will also exercise their judgment so as not to impose these requirements unreasonably on those whose desire is to provide access to the forest.
R. Neufeld: I appreciate the minister's explanation. Maybe this already happens in the trapping industry. Do they have to go through the district manager now to construct new trails or to maintain or rehabilitate some trails? If not, would they have to now?
Hon. A. Petter: I think what's contemplated here, if you look at the section, is the construction of a trail and then its rehabilitation and maintenance. I find it hard to imagine that those who have created a trail simply through usage would fit this definition, and I don't think that trapping is really what's contemplated. What's contemplated here is the actual construction of a trail as a trail. It isn't envisaged that this would affect those who use the forest when natural trails may emerge through their use.
R. Neufeld: So if the trapper were extending his trapline trail and had to go through some forest -- and I'm not talking about huge trees -- and cut down some trees, would he be subject to the Forest Practices Code?
Hon. A. Petter: It's going to be a question of judgment. If there is a major disturbance of the forest environment through the construction or imposition of a trail, then yes, the act is there. It should be there, to make sure that it is not done in a way that compromises soil values and other values. If it's simply a matter of utilizing the forest in a way that doesn't cause those kinds of disturbances or dangers, then I don't envisage this section will impose any impediment to the activities of trappers or others. But if you're talking about the construction of some formalized trail that will damage the forest environment or has the potential to, then yes, there is a requirement for approval before that work takes place.
W. Hurd: The minister will be aware that the Outdoor Recreation Council of British Columbia made a submission to the ministry as recently as June 15 with respect to section 102. At this point in the debate, I would simply settle for an assurance from the minister that his interpretation and explanation of section 102 to the Outdoor Recreation Council and other groups have satisfied them that the trail-building exercises they may be involved in are not what is contemplated under this particular section, and that indeed they will not be subject to the criminal provisions of the code and the rather heavy hand of the involvement of the district manager in approving the activities they might be involved in.
Hon. A. Petter: Certainly I can assure the member as well as other groups that it is not the intention of me, the government or this legislation to prevent the construction of trails. The construction of trails in the forest is a very constructive -- pardon the pun -- activity that can provide educational opportunities and opportunities for enjoyment of the forest environment.
The sole purpose here is to do what I'm sure the Outdoor Recreation Council and other environmental groups hope the Forest Practices Code will do in general, and that is to protect the forest environment. I can assure the member that I am confident that the discretion exercised by district managers and others will reflect that general sentiment and will be sympathetic to the desirability of having trails, provided that they are appropriately constructed and not damaging to the soils and forest environment.
Section 102 as amended approved.
On section 103.
A. Warnke: This particular section is very straightforward, and I'm sure it receives enthusiastic support from all sides of the House.
Perhaps it does deserve some clarification, particularly in subsection (b), when we talk about possession. It implies here that the mere possession of nails, spikes and that sort of thing.... By the same token, perhaps the minister could just explain that you somehow have to prove there was intention. How do you prove, let's say in a court of law, that there was the intention of spiking trees and that sort of thing? How does someone, I suppose, illustrate...? One wouldn't have to illustrate that they perhaps had other intentions if they were carrying nails or spikes. That's one question. I'll ask two or three and just get a general answer from the minister.
Secondly, with regard to soliciting funds or materials from another person, we obviously have to be very careful here, because there is usually the general thrust that we're soliciting funds for the purposes of protecting trees, or whatever. People might donate to such a cause or effort
[ Page 12675 ]
when, in fact, they might go to explicit acts of tree-spiking and that sort of thing. I'm wondering if the minister could maybe give a general response to that.
Hon. A. Petter: My response is to say that this provision tracks the wording in section 139.1 of the Forest Act. It really doesn't depart in any substantive way from that wording. The only change is that when we get to the penalty section, the potential penalties have been increased. The provisions the member refers to are the same provisions that currently exist.
Section 103 approved.
On section 104.
W. Hurd: Just a brief explanation with respect to the definition of a botanical forest product. Would we be referring here to the yew tree at all, or is that a different classification? I would welcome a more concrete definition of a botanical forest product. If it doesn't include the yew tree, perhaps the minister can advise under what relevant section of this act the yew tree would fall. It is an issue of some controversy that not enough effort is being made to protect that species on Crown land. I wonder if the minister could first of all offer us clarification on the definition of a botanical forest product.
[12:15]
Hon. A. Petter: I think what is more normally thought of as intended by this section would be products like pine mushrooms. The yew tree as a tree would likely not fit this definition. If we're referring just to the yew bark and its uses -- taxol and that kind of thing -- then yes, it would fit within the definition of botanical forest product.
W. Hurd: Since the minister has referred to yew bark and the fact that there have been permits applied for to export it, I wonder if he could advise whether this section confers any additional rights, responsibilities or requirements on those individuals that might wish to apply to harvest the yew tree and to salvage the bark. I would ask that question first of all.
Since this has been a controversial issue -- you know the zeal with which some licence holders are moving to protect the yew tree, which is important not only for the extraction from the bark but also for research purposes -- I wonder if the minister could advise us whether this section confers any additional protection on that species or the people who may apply to salvage and extract taxol from the bark for export purposes.
Hon. A. Petter: This provision is an enabling provision. Regulations will have to be developed following consultation to decide exactly what products are to be classified as botanical forest products. Potentially, yew bark could be included, but it is not intended in the short term that that be the case. The requirements that then attach to those products will be promulgated through regulation, but that is going to require a process of consultation. What we have here is an enabling provision.
So the short answer is that until we have gone through that period of consultation and the regulations are generated, there is no immediate impact as a result of this section on the yew bark industry or any restriction that does not currently exist.
W. Hurd: This is the only section we have run into so far that might have the ultimate potential to protect or regulate the destruction or otherwise of the yew tree. If this section isn't necessarily relevant to the yew tree at this time, is there anything else in the act that deals with this important species -- which I am sure the minister has received input on -- not being protected in existing conifer harvest plans or softwood harvest plans to the extent that many people feel it should be? If section 104 doesn't apply, is there any general provision that he could point us to with respect to how we can achieve better protection for this species until the properties of taxol and yew bark are better identified through research?
Hon. A. Petter: We could get into a whole debate and discussion, I'm sure, on yew bark and some of the work that's going on at BCIT and elsewhere on trying to generate yew plantations. I think the only point to be made here is that we have an enabling provision that would enable us to deal with yew bark as a botanical forest product if that was desired. There are no draft regulations at this time. That will have to flow from processes of consultation. But it's certainly conceivable, and the tools are now there to deal with that if it's so desired. But I think a larger debate on the issue of the yew tree, its bark and the international implications should probably wait for another day at another time.
Sections 104 to 107 inclusive approved.
On section 108.
W. Hurd: I think that part 6 gets us into the more controversial areas, perhaps, of the entire code -- namely, the compliance and enforcement provisions. I'm specifically interested in some of the requirements we're dealing with under sections 108, 109 and 110 with respect to stopping vehicles and the production of records. Specifically with respect to section 108, we're obviously dealing with substantial new powers for the ministry to acquire the evidence they may need to pursue some remedy under the compliance and enforcement sections of the code. I wonder if the minister could advise us whether section 108 confers additional rights and responsibilities on the ministry in determining when a transgression of the code has occurred -- which, of course, could have implications for court action or any other type of activity.
Hon. A. Petter: No. In fact, this section very closely parallels section 150.1 of the existing Forest Act. If anything, it circumscribes, narrows and better defines the powers. There is no new power here that can't be found in the existing legislation.
Section 108 approved.
On section 109.
W. Hurd: With respect to stopping a vehicle or vessel for contravention, I guess the minister is assuring us again that this particular provision parallels existing standards and regulations and that no additional power is being conferred. We're merely codifying it in this code as being a priority requirement for exercising the powers under the code. Is that a fair assessment? We're really not seeing any additional powers conferred under section 109.
[ Page 12676 ]
Hon. A. Petter: No, other than the fact that it now references, obviously, the Forest Practices Code of British Columbia Act as well as the Forest Act. It is essentially the same power found in section 106 of the Forest Act.
Section 109 approved.
On section 110.
G. Wilson: I'm not so sure that I buy this comfort that the minister is talking about. I'm reading the Forest Act here and also what's in sections 107 to 110, and I don't think that section 110 does parallel and narrow, frankly. I think that additional powers are provided in this act. They're not bad powers, necessarily -- some of them. One of the problems we have is with this: "A senior official may by written order require the holder of an agreement under the Forest Act or Range Act, within the time specified in the order, to produce records that are (a) related to an activity that requires a licence, permit, plan or approval under the Acts, and (b) specified or otherwise described in the order." Then it says: "(2) At any reasonable time an official" -- remember, that can be anybody from Energy, Mines and Petroleum Resources, Environment or Forests -- "may enter the business premises of a holder of an agreement under the Forest Act or Range Act where records are kept, for the purpose of inspecting or copying records that are required to be kept under the Acts."
I'm looking through the existing act, and there's no question that there are provisions and powers there with respect to how designated people can act. But I don't think there's the wide latitude that's provided to anybody from the Ministry of Energy, Mines and Petroleum Resources or a designated person from the Ministry of Environment or the Ministry of Forests to have the powers it suggests under 110. Maybe the minister could show me where they are.
Hon. A. Petter: In general terms, the wording may be somewhat different, but I think the powers are very similar to the powers contained in section 149(2) of the existing Forest Act. It is a common-law power given to government officials administering regulatory statutes. So I don't think it's a major departure. There are some changes in wording in this particular section. I'd suggest that if the member looks at 149(2) of the Forest Act, he'll find that the general thrust is much the same.
G. Wilson: Section 149(2) of the Forest Act says: "The regional manager and a forest officer...may at reasonable times inspect records kept under subsection (1)" -- and subsection (1) spells out what those records are. It quite clearly refers to records of volume of timber harvested, volume and prices of timber bought and sold, quantities of products manufactured and costs of harvesting timber and manufacturing products. It's all spelled out in the act.
But this says: "At any reasonable time an official" -- remember that an official in the definition in this act is anybody under Energy, Mines and Petroleum Resources, Environment and also Forests, because it doesn't say a forestry official here -- "may enter the business premises of a holder of an agreement under the Forest Act or Range Act where records are kept, for the purpose of inspecting or copying records that are required to be kept under the Acts." Well, a whole series of records now have to be kept under this provision, which aren't included in the original act. Those are pretty wide-ranging powers to give a civil servant, don't you think?
Hon. A. Petter: I don't think anyone can dispute -- and certainly I wouldn't -- that by applying these sections to this act, because this act contemplates additional records.... There obviously is reference to a broader range of records. The power is analogous, but because we're talking about it being applied to this act and because this act contemplates a broader range of recordkeeping, then, yes, the power necessarily has reference to that broader range of records. I don't think that's a major substantive change.
The substantive change came about in the sections of the act that contemplate a broader range of records. This section says that those records will now be produced in much the same way as the Forest Act said the records required under that act would be produced. They're now a broader set of records, but the production or search powers are much the same.
G. Wilson: I raise this in this particular section, although it does have relevance to division 2, when we get into forfeiture. I notice that it says here that a senior official may put out this written order and may also, at a reasonable time, enter the business premises, and so on. We go back to the definition section, which says that anybody from those three ministries.... Yet with respect to seizure, only a designated Forests official can seize. Is that intended?
Hon. A. Petter: Could the member clarify what section he's referring to in respect to the seizure?
G. Wilson: I am jumping ahead a little, but I'm anticipating what we're going to ask anyway. Section 110 talks about the acts.... Section 111 also talks about an official, but if you turn the page and look at section 115, under "Division 2 -- Forfeiture...."
The Chair: Hon. member, we are on section 110, and I would ask you to just keep it to section 110. We'll get to those sections in a few minutes.
G. Wilson: All right. Then let's just stick to section 110. I thought we could expedite this, but maybe not.
Is it intended that the senior official in section 110 is a senior official of the Ministry of Forests? It doesn't say that, and the act provides a senior official to be one of three designated ministries.
Hon. A. Petter: That is correct. It is likely to be the Ministry of Forests, but the member is correct. There is an amendment to section 115 in the possession of the Clerk -- and hopefully, of the member -- that makes the wording of that section consistent with the wording of this section.
W. Hurd: I think this section needs more clarification. My understanding is that where it appears in the Forest Act, it is there to provide the Crown the information that it needs to properly evaluate Crown timber in order to assess timber-cutting fees. That, as I understand it, is clearly the requirement in the Forest Act. In that case, I can understand why the Crown would require access to records; otherwise, they couldn't properly evaluate the resource which belongs to the people of the province of British Columbia.
[ Page 12677 ]
But I think the concern being expressed in this case is that we're now dramatically broadening the records which would have to be provided to a senior official of the Forests ministry. I mean, I assume it could include silvicultural information, environmental plans or wildlife plans. I'm assuming that under this section -- at least, if the wording is as broad as it appears -- the forests official can require any information and can seize any information, not just the information that would be required to evaluate the Crown resource.
[12:30]
I fail to see how this parallels the intent of search and seizure provisions under the existing Forest Act. But if the minister can assure me that in fact the ministry has had that ability to requisition those additional records all along, I'll accept it at face value, however reluctantly at this hour of the day.
Hon. A. Petter: I shouldn't be revisiting statutory interpretation courses that I wish I'd never taken -- and the member can be relieved he doesn't have to -- but if you go to section 149(2) of the Forest Act, it says: "The regional manager and a forest officer authorized by him may at reasonable times inspect records kept under subsection (1)." Then look under the records under subsection (1). Those records include the records, and reports of -- and you look at paragraph (e) -- "the nature and extent of basic silviculture carried out...." It goes on to say about the expenditures incurred in doing that.
Under the current Forest Act, the records include records pertaining to the nature and extent of basic silviculture. So I disagree with the member's account of what the Forest Act provides. There is some expansion of records here because of the different kinds of records that are now required, but they're not different in kind. Basic silviculture records were previously covered, and we're now dealing with other kinds of records that are analogous but flow under this act.
W. Hurd: But the minister will agree that under a previous provision in this act, which I've been trying to find for the last half an hour -- I know it exists; we did pass it earlier -- there's clearly a whole range of additional responsibilities that are required of a licensee, ranging from watershed plans to stream management plans. We went through the list, and considerable concern was expressed at that time about the costs that would accrue to licensees as a result of those additional requirements.
One now assumes, under section 110, that all the information that is compiled, or would be in the process of being compiled, would be subject to the same rights of access. Is it fair to comment that every record the licensee possesses on just about anything is now readily accessible by the Crown?
Hon. A. Petter: I can only reiterate what I've already said. The power here is analogous to the power in section 149. It's true that a broader range of records are kept. I think the public has a right to expect that they will be kept and made available. This provision facilitates that, just as section 149(2) provides similar kinds of powers under the circumstances of silviculture records under the Forest Act.
W. Hurd: Just so we have it on the record, what I see in section 110 is that a senior official can require and order any record of any description that the licensee may have on their premises. Failure to comply with that written order can and may result in an inspection of the premises and the seizure of any record. We're not dealing with anything that is specifically off the table. It could be any record that the ministry suspects may be there, whether it be a wildlife management study or perhaps even information that is above and beyond the requirement of a plan. All of it is potentially accessible to the ministry upon a written order. Is that the kind of powers that we're dealing with in this section?
Hon. A. Petter: No. This section only applies to those records that are required under the acts and are necessitated by this legislation, not to a broader set of records that the member seems to be referring to.
Section 110 approved.
On section 111.
Hon. A. Petter: I move the amendment to section 111 that is in the possession of the Clerk. The effect of that amendment is to add at the end of section 111 the words "on the request of that person."
On the amendment.
G. Wilson: The problem with the amendment, and the problem with this whole section.... I just don't buy this stuff that the minister has been handing us, that this parallels the existing act. It does not parallel the existing act at all.
Section 149(2) says: "The regional manager and a forest officer authorized by him may at reasonable times inspect records kept under subsection (1)." It says "inspect." It doesn't say anything about going in and seizing them. Later on it talks about entry onto land, and it talks about the requirement of a peace officer there, unless it's the chief forester or regional manager. It doesn't give anything close to the latitude that this section does.
Not only that, under section 111 it says: "An official who conducts an inspection under this Division or who seizes goods under Division 2" -- seizes goods means somebody going in and actually seizing documents -- "must provide proof of identity to the person who has apparent custody or control of the property...." It doesn't say the owner. It doesn't say you have to notify the owner that you're going to seize the private property. It talks about "apparent custody or control of the property." Who is that? A janitor? Who's the person in "apparent custody" of this thing at the time?
Then it goes on to say: "...or activity being inspected or the goods being seized." The amendment says "on the request of that person." So if somebody is caretaking the building and is in apparent custody of your records and doesn't happen to ask for any kind of notification or identification, this official -- who may not even be a forestry official but might be from the Energy, Mines and Petroleum Resources ministry or the Ministry of Environment -- can walk in and seize all your records. It doesn't say anything like that in the existing act.
Hon. A. Petter: Well, I'm a little taken aback by the member's intervention. Maybe he's trying to excite himself and the rest of us in the process.
There is no provision for the seizure of records. To obtain a seizure of records requires a warrant. There is provision for forfeiture and seizures of goods.
[ Page 12678 ]
I thought we were dealing with the amendment. This provision provides that there must be proof of identity. I can't understand why the member would object to the provision of proof of identity to the person who has apparent custody or control of the property or activity being inspected or of the goods being seized. So I'm a little at a loss. In any event, member, this has nothing to do with the seizure of records.
G. Wilson: Well, I'll yield to the minister, given that it's now 12:40. Here we are debating an extremely important piece of legislation this early in the morning, with 73 amendments brought in on the night we start to debate this legislation, which is a total outrage in itself.
The reason I confused records is that the minister tried to say that the Forest Act section 149(2) was comparable. Subsection (2) says "The regional manager and a forest officer authorized by him may at reasonable times inspect records kept...."
Hon. A. Petter: Inspect, not seize.
G. Wilson: Yes, inspect records. I understand that. But in this section it says to seize property, and in my confusion with respect to the property provision....
My concern is not that the person has to show identification; it's to whom the person has to show identification. It says: "...to the person who has apparent custody...." But apparent in whose terms -- the person who shows up? So you've got a custodian there looking after these goods, who for whatever reason just doesn't ask for any kind of identification, and therefore the person simply walks in and seizes these goods. That's the concern here. The parallel between 149(2) of the existing act and this particular section 111 just doesn't exist.
Hon. A. Petter: If the member's concern is regarding the seizure of goods, then I suggest that should be addressed under part 6, "Division 2 -- Forfeiture," which is where those provisions are contained. Other than that, I can only reinforce what I said previously, namely that this section provides for a requirement that there be proof of identify, which I would have thought is a desirable requirement to guard against abuse of these kinds of powers.
G. Wilson: Well, specific to the amendment, the reason I bring up division 2 is that this particular section makes reference to it. That's why I'm talking about the seizure portion now.
Hon. A. Petter: We'll get there.
G. Wilson: Specifically to the problem with the amendment, it says "on the request of that person," and "that person" refers to somebody in apparent custody or control of property they don't own. How about if you took that out and said "the owner or apparent owner of the property"? That would be different than somebody who happens to be a custodian, a night watchperson standing there looking after it, a janitor or whoever it might be. At that point this official can come in and seize those goods. That's the problem. Where is the right of the owner or apparent owner in protecting their property here?
Hon. A. Petter: If the member has reference to the current section 106 of the Forest Act, he'll find that the words "at the request of the person" are contained in that current provision. That section governs the power to stop and require identification. So there's really no change here. The amendment in fact brings the proposed provision more into line with the current provision than it would be without the amendment.
G. Wilson: Could the minister give me the reference to that section in the act again?
Hon. A. Petter: Section 106.
G. Wilson: So it's section 106 of the Forest Act, which is under part 9 of the act, is that correct?
Hon. A. Petter: Yes.
G. Wilson: It says that the minister may develop and maintain recreational sites. That's section 106. Or do you have a consolidated act that I don't?
Amendment approved.
On section 111 as amended.
G. Wilson: I seem to have a different consolidation, maybe, than the minister has.
Hon. A. Petter: The consolidation of the Forest Act that I have is November 25, 1993. Section 106 deals with proof of identity and power to stop and require identification. It says: "A forest officer may (a) stop a person including a person who is operating a vehicle or vessel, and (b) require a person to produce proof of identity if the forest officer has reasonable and probable grounds to believe that the person is contravening or has contravened an order or regulation made under this Part, and, at the request of the person, the forest officer must produce proof of identity." That is the current provision within the Forest Act, which speaks of "at the request of the person." That same language is being incorporated here, so it will be in conformity.
G. Wilson: There's a considerable difference between somebody who's being stopped in a car or boat to be asked questions about potential violations that they themselves may have committed and somebody who is simply a custodian of somebody else's property that's about to be seized. There's a substantial difference there. The amendment didn't take care of the problem that the person who needs to be notified is the owner, or apparent owner. It still provides for this officer to come in and take these goods that are under the apparent custody of whomever, and the apparent owner may not even be notified under this particular section.
[12:45]
Hon. A. Petter: First of all, I will point out to the member that often what's happening is that the Crown is seizing its own property back. Also, under the current provision in the Forest Act on seizure and sale, there is no requirement for providing proof of identity. The member may not like this requirement, which tracks language in other provisions of the Forest Act, but it is a marked improvement over what currently exists, where there is no requirement whatsoever for proof of identity.
[ Page 12679 ]
G. Wilson: I wonder if we could move off the proof of identity, because that's not the problem. I think it's great that they have to prove identity. The problem is to whom they have to prove who they are. If it said they had to prove it to the owner or apparent owner, or the person who is thought to be in violation, that would be.... But it's whoever is in apparent custody or control of the property. That may not be the person who is deemed to be the owner. The minister says they're only taking back Crown property, but that may or may not be the proof in whatever subsequent legal action may take place. You can't presume the person to be guilty in advance, and you have to at least notify the owner of the property that those goods are being seized. Surely that's just logic.
Hon. A. Petter: I don't know; I suppose the member wants us to do a search of the ownership of the property before seizure is made. All I can say is that the requirement for proof of identity under the analogous provision of the Forest Act does not require it to be provided to anyone right now. Under this provision, it will be provided to a person who has apparent custody or control of the property and who can, no doubt, communicate to the owner.
G. Wilson: That's it -- the owner.
Hon. A. Petter: The member is saying that it should be the owner. I understand the point, except I don't think it's a reasonable requirement. I would point out -- and have pointed out, and I'm not sure there's much more I can say -- that this is a tremendous step forward in terms of a requirement for proof of identity. I'm surprised that the member is upset that proof of identity is now required, given that it isn't currently required. He objects to the fact that it's required for those who have apparent control of the property. I always thought that was the logical person to whom to provide it. But if the member disagrees, fine -- he disagrees.
W. Hurd: Well, I'm going to take a run at this, against my better judgment. Clearly, when we talk about section 111 and we define the word "inspection," would it not be reasonable to assume that it's the same definition of inspection that exists under section 110(2), where records can be seized at an office?
I think the point members are trying to make is that under section 111, there's no requirement for the official to determine that the person he's seizing the records from is actually the owner of the records. All he is required to do is identify the person as being in apparent custody and control, who may or may not be the owner. He could be, as the member has said, the night watchman, who just happened to be sleeping near the desk, and under this section he could be designated as somebody who is nominally in control or in custody of the records at that time. So I think the plea being offered is that a much stronger definition of the word "owner" be put in place here; otherwise the ministry could seize the records from just about anyone. I don't know if that explanation makes it any clearer, but I throw that out there. I think this section is not particularly well worded, and the amendment doesn't address the concern.
Hon. A. Petter: I think we're in a black hole here, and I'll try one last time to get us out. There is no provision for seizure of records here. "An official who conducts an inspection under this Division" -- an inspection, not seizure -- "or who seizes goods under Division 2" -- which we hopefully will come to shortly -- "must provide proof of identity...."
So please disabuse yourself of the notion that there is a provision here that enables the seizure of records; there is not such a provision here. It is the seizure of goods under division 2, which we will come to, and the inspection under this division. Then there is a new requirement, which is not previously provided for, for proof of identity to "the person who has apparent custody or control of the property...." That strikes me as a very reasonable requirement and a tremendous step forward from current provisions, which require no disclosure of identity. I think that's probably as far as I can take the argument.
Section 111 as amended approved on division.
On section 112.
W. Hurd: Again, this issue of apparent custody and control crops up. I'd really welcome a more accurate definition from the minister with respect to section 112(3) when we're talking about a person who has apparent custody and control of the land. That seems to be even more vague with respect to "premises, records or other property that is being inspected." I really think we have to make some effort in these sections to clarify that we are referring to the owner of the records, not a person in apparent custody and control of them.
As the member for Powell River-Sunshine Coast has correctly pointed out, being able to access the records from someone who has apparent custody and control is far different than at least having the obligation to identify the owner. I think it's a relevant point, and I would offer it again. This deficiency seems to be even more glaring in section 112(3), because this term "apparent custody or control" seems to be cropping up over and over again; it isn't just isolated to section 111. I would offer that observation. Having identified it once as a black hole, the minister may choose not to engage in it a second time, but I think it needs to be pointed out.
Hon. A. Petter: Let me give an example. When we get to the sections regarding seizure of goods, I think it will become clear that circumstances very often arise where there's been a trespass of some kind, and timber that has not been marked has been cut. Clearly the Crown wants to be able to go in and seize that timber without having to engage in some elaborate determinations on issues of licensees or operators or whatever. Yes, notice should be provided to those who have apparent control or custody. That is an improvement over not providing notice and identification. Once we get into the section that deals with seizure, it will become apparent that these are circumstances where tracing owners would really not be a reasonable requirement.
W. Hurd: Let me get this straight. Under section 112(3), "a person who (a) has apparent custody or control of the land, premises, records or other property that is being inspected" is required to provide certain pieces of information to the official: "(d) proof of identity, (e) a licence, permit or operational plan...(f) a record requested under section 110." It's a little ludicrous to suggest that a person who has apparent control and custody could even produce that information. It would clearly have to be the
[ Page 12680 ]
owner. I don't see how it could be difficult under section 112(3) to identify the owner as being the person in control of "land, premises, records or other property." I think it's a point that needs to be raised.
I recognize that the hour is late. I'm sure the minister will assure us that this merely parallels existing sections of the Forest Act, and if he'll make that assurance again.... I just know that none of us will go scrambling back to the act to verify it, but is anything additional being proposed here that doesn't currently exist in the Forest Act?
The Chair: The member for North Vancouver-Lonsdale rises on what matter?
D. Schreck: We have canvassed this matter of ownership extensively, and it is quite truly becoming tedious and repetitious. If the opposition wants to propose that we explore the ramifications of the corporate secretary or the law of agency or the problems of proof of ownership and who's in possession, we could probably debate both the philosophical and legal points therein for the next several months. Clearly the matter has been canvassed extensively, and there's a difference of opinion. At some point it's time to vote and get on with this, rather than touch on tangential matters that are not directly relevant to the clauses under debate.
Hon. A. Petter: I appreciate the member for North Vancouver-Lonsdale's point, but just out of an abundance of trying to be helpful, let me suggest that in many cases the owner may be miles away or may not even reside in the jurisdiction. It would be completely unreasonable to suggest that the owner would have to come and submit to a process of this kind. Obviously the person whom the owner reposes apparent custody or control in is the person to whom one would look under these circumstances.
In terms of the member's question, I can say that while the wording is not exact, I believe the general spirit of existing sections of the Forest Act is carried forth through these sections -- taking account of the fact that they're now contained within a different and broader regulatory regime.
W. Hurd: I didn't have the opportunity to address what I assume was a point of order raised by the member for North Vancouver-Lonsdale. If he wants to expedite the process, I suppose the possibility always exists for the opposition to call a division on one of these reasoned amendments from the minister and to empty the offices around the precincts. I know that is not what he was referring to when he talked about the issue being thoroughly canvassed.
The Chair: And I know you are referring to section 112.
W. Hurd: I certainly know that he wants us to thoroughly canvass these issues without actually calling a division and emptying the offices throughout the precincts, hon. Chair.
Section 112 approved on division.
On section 113.
G. Wilson: I think it is appropriate that we deal with sections 113 and 114 together, if there is no objection, because they both deal with precisely the same issue. With respect to the Forest Act, I note that under section 150 there is a provision for the chief forester or a peace officer to act as that senior official, as a regional manager may act under the existing act. Under this act, however, it provides for an official and makes no reference at all to that official being an appointment of a regional manager or a chief forester. It makes no reference even to the ministry. It simply says that a justice of the peace may issue a warrant under this act "to an official to enter premises and search for and seize evidence of a contravention of the Acts." That is wide-ranging power, because it doesn't say to search for or seize evidence of a specific violation or charge. Essentially they are out to try and find whether or not there has been a contravention of the act. There is a difference, because it is significantly different to charge somebody and then go racing around trying to find enough evidence to substantiate the charge -- which is actually going on in another jurisdiction, as we speak -- and to have somebody who has evidence to lay a charge and then go in and to seek to get evidence in support of the charge that's been laid. This does not cut it, as far as we are concerned, because it does provide for these civil servants to have wide-ranging powers, which I'm not sure should rest in middle-management civil service officials.
[1:00]
Hon. A. Petter: First of all, on the question of the official, the definitions section defines "official" as "a designated forest official, a designated environment official or a designated energy, mines and petroleum resources official." The "official" must be designated pursuant to the definition of "official" under section 1.
Second, the member should understand that all of these sections must be read in context of interpretations under the Charter of Rights with respect to search and seizure. Those interpretations generally provide that generalized inspection powers can be conducted, and those have already been provided for and discussed. Where it gets to the point of belief that there may have been a contravention of the act and a search is being pursued in order to gain evidence for that contravention, then a warrant must be obtained. In section 113 the provision for a warrant is provided to ensure that when one reaches the point where there is some sense that there may have been a contravention, the requirements of the Charter are then satisfied, and a warrant is issued by a justice of the peace with regard to the requirements of the Charter and other legal provisions. That's the distinction that is being referenced here, but it has to be understood in the context of judicial interpretation on search and seizure and inspections under the Charter of Rights.
G. Wilson: I recognize that it says it is under section 17 or 17.1 of the Offence Act, and I understand how that works in terms of the empowerment of a justice of the peace. The Charter of Rights provision is another question. It's a question that would have to be litigated. It isn't specifically covered under this act. Notwithstanding that, the government, through the passage of this act, can empower that civil servant to go ahead and do the search and seizure.
I just don't buy the explanation of the minister. Why has the minister amended the Forest Act, or brought in a provision here that is so different from the Forest Act with respect to the regulatory powers that a chief forester or a regional manager would have? I just don't think it's a
[ Page 12681 ]
good idea to be empowering civil servants -- never mind if they're designated or not, and they are by this act -- to have powers that generally rest with police officers and are so discharged.
Hon. A. Petter: Well, first of all, we're not talking about future judicial interpretations. There have been very authoritative judicial interpretations under section 8 of the Charter. Supreme Court of Canada cases like Hunter v. Southam clearly demark and define the circumstances under which inspections can take place versus attempts to secure evidence for contraventions of the law. I suggest it must be viewed against that backdrop.
With respect to the inclusion of officials, in many cases the import of the evidence will only be understood by officials who have expertise in the area, not necessarily by peace officers who do not have that expertise. For that reason, it's appropriate that officials be designated as having powers with respect to these provisions.
G. Wilson: My last question under this act is a simple one.
Interjections.
G. Wilson: I meant under this section, so don't get excited.
Does it require that a charge be laid prior to the search and seizure?
Hon. A. Petter: In order to secure a warrant, one has to demonstrate reasonable and probable grounds. So charges are not necessary, but reasonable and probable grounds would have to be demonstrated. If one went ahead and sought evidence without a warrant at that point, then that evidence would not be admissible.
G. Wilson: Again, this is a section of a bill where you don't have to lay a charge, and yet you are empowering a senior civil servant to go in and have wide powers for search and seizure. I don't think that's the way we should be proceeding in terms of this legislation.
Hon. Chair, this is a very important bill and a very important section. There were 73 amendments brought in tonight. I notice that it's now 1:05 a.m. I move that the committee rise, report progress and ask leave to sit again.
Motion negatived on the following division.
|
YEAS -- 4 | ||
|
Hurd |
Wilson |
Neufeld |
|
K. Jones | ||
|
NAYS -- 28 | ||
|
Petter |
Priddy |
Edwards |
|
Charbonneau |
O'Neill |
Garden |
|
Dosanjh |
Hammell |
B. Jones |
|
Lortie |
Giesbrecht |
Smallwood |
|
Cull |
Gabelmann |
Clark |
|
Barlee |
Blencoe |
Janssen |
|
Evans |
Randall |
Conroy |
|
Doyle |
Lord |
Streifel |
|
Jackson |
Copping |
Schreck |
| Lali | ||
Sections 113 and 114 approved.
On section 115.
Hon. G. Clark: I move the amendment to section 115. You don't have it under my name.
[SECTION 115, in the proposed subsection (1) by deleting "A designated forest official" and substituting "An official" and by deleting "the designated forest official" and substituting "the official" in paragraphs (a), (c), (d) and (g).]
On the amendment.
W. Hurd: I'm not sure which amendment this is. It may be No. 40 of the 70 that the government has introduced. In the course of the evening's debate, the minister has been most helpful in clarifying for the committee exactly what the intent of these amendments is. Since we have a new minister in the saddle, with I'm sure a great deal more energy, I would hope that, in the spirit of the debate so far, he will clarify for the committee the intent of the amendment.
Hon. G. Clark: This has been canvassed at some length by the Minister of Forests, and I believe that the explanation he gave on previous sections stands when it comes to this amendment. This amendment is consistent with his previous amendments.
Amendment approved.
On section 115 as amended.
W. Hurd: I'm going to request some clarification with respect to section 115, which carries with it significant powers to the Crown in the area of forfeiture. I wonder if the government could clarify exactly why there would be a need in the Forest Practices Code, which supposedly governs performance on the land base, for division 2, which clearly indicates that there are avenues for seizing timber, lumber, veneer and a whole range of other products which might be the property of the licensee.
[1:15]
Interjections.
W. Hurd: Hon. Chair, we seem to be having....
The Chair: Order, please. The Chair is having some difficulty hearing the hon. member and would ask members to allow the hon. member to make his comments. That includes you, hon. member for Surrey-Cloverdale.
W. Hurd: As we've progressed through these sections, we've seen the government decide to bring in the same provisions that currently exist in the Forest Act, but to offer a strengthening of the regulations. I assume that we now have a set of regulations under the Forest Act and a reciprocal collection of regulations under the Forest Practices Code. I would certainly welcome an explanation from the government as to why we now have these search-and-seizure and forfeiture provisions under the existing Forest Act and now under the Forest Practices Code. This is in addition to the administrative and criminal penalties that are called for in later sections. There's certainly an area of philosophy with respect to section 115 in division 2 which needs to be clarified.
[ Page 12682 ]
Hon. G. Clark: It's been clarified all night. There's no overlap or duplication. The only reason why this section remains in the Forest Act is that we need it to deal with the scaling provisions in the Forest Act. The only difference between this and section 143 of the Forest Act is the inclusion of hay and botanical forest products.
R. Neufeld: Section (2)(a) says that the regional manager may sell "at a public auction or by private sale...." I appreciate the public auction, and I don't have any problem with that if it goes to the extent that you sell it by public auction. But I do have a bit of a problem with private sale. Maybe the minister could explain why we have private sale in there.
Hon. G. Clark: We simply mirrored the language that exists in the Forest Act. I don't believe there have been any problems or complaints around the Forest Act in this respect, so this simply mirrors that legislation.
Section 115 as amended approved.
On section 116.
Hon. G. Clark: I move the amendment to section 116 standing in the name of the Minister of Forests.
[SECTION 116,
(a) in the proposed subsection (1) by deleting "a designated forest official" and substituting "an official" and by deleting "the designated forest official" and substituting "the official",
(b) in the proposed subsection (2) by deleting "a designated forest official" and substituting "an official", and
(c) in the proposed subsection (3) by deleting "A designated forest official" and substituting "An official".]
Amendment approved.
On section 116 as amended.
G. Wilson: In looking at the Forest Act, I wonder if the minister might want to tell us where.... I think the problem I have here is in section 116(4)(a) and (b) with respect to the livestock sold. If the minister could point to where in the existing act that provision is provided, I'd be happy.
Hon. G. Clark: The member's pig-farming experience is coming to bear in the House. It mirrors section 43 of the Range Act.
G. Wilson: I will look that up in just a second. The next issue deals with 116(3), where it says: "A designated forest official acting under this section must take reasonable care...." What is the provision with respect to the seizure of livestock in terms of time lines? I notice that there is a six-month time line with respect to the balance of the payment, but there's nothing that suggests any provision for time after seizure to the point of sale. Perhaps the minister could clarify that.
Hon. G. Clark: Yes, that's correct.
G. Wilson: The minister is saying that that's correct; there is no provision for time lines. Essentially it is at the discretion of whoever the ministerial official is as to how long that livestock is held. Is that correct?
Hon. G. Clark: That's my understanding.
Section 116 as amended approved on division.
On section 117.
Hon. G. Clark: I move the amendment to section 117 standing in the name of the Minister of Forests.
[SECTION 117, in the proposed subsection (5) by deleting "or section 119" and substituting ", section 118(4) or (5) or 119".]
Amendment approved.
Section 117 as amended approved.
On section 118.
Hon. G. Clark: I move the amendment to section 118 which the Clerk has at the table.
[SECTION 118,
(a) in the proposed subsection (2) by deleting "under subsection (1) or a designated forest official who requires removal or abatement of a fire hazard under section 82" and substituting "under subsection (1), a designated forest official who requires removal or abatement of a fire hazard under section 82 or a district manager who orders work to be done under section 99(2), 101(2), 102(3) or 106(1)",(b) in the proposed subsection (3) by adding ", 99(2), 101(2), 102(3) or 106(1)" after "or section 82", and
(c) in the proposed subsection (3)(b) by adding "subject to section 125," at the beginning.]
Amendment approved.
On section 118 as amended.
W. Hurd: Clearly this would not appear to be a housekeeping amendment. I would remind the committee again that these amendments were not available for review before this evening's debate. I wonder if the minister, in consultation with staff, could offer us an explanation. I'm particularly interested with respect to section 118(2). Again we run into the designation of a forest official requiring removal or abatement of a fire hazard under section 82. I wonder if we could get a brief explanation of the rationale for this particular amendment as it applied to the original wording of section 118.
Hon. G. Clark: This is an important amendment. If you look at the original wording, it says that notice had to be given under section 82, and we're adding that the district manager who orders work to be done under sections 99(2), 101(2), 102(3) or 106(1), as well as section 82, must give notice. So we're simply adding a notice provision to any work that's authorized under other sections.
K. Jones: Could the minister tell us if this is the type of situation where there was failure to do a slash burn or where accumulated burning had not been completed by a contractor?
Interjection.
Amendment approved.
Section 118 as amended approved.
On section 119.
[ Page 12683 ]
Hon. G. Clark: I move the amendment which the Clerk has at the table.
[SECTION 119, in the proposed subsection (3) by deleting "section 97," and substituting "section 96,".]
Amendment approved.
On section 119 as amended.
W. Hurd: Again, since we're now dealing with the penalty section of the Forest Practices Code, I wonder if the government can advise of any changes that have occurred with respect to the penalties for unauthorized timber harvesting under the code with respect to what currently exists in the Forest Act. As we've gone through this debate, we've seen a number of language changes in these sections which we've been assured parallel the existing regulations in the Forest Act. But I think that when we explore the wording, we find that the definition has changed. So I wonder if the penalties for unauthorized timber harvesting have been tightened, controlled or toughened up in any way with respect to the code.
Hon. G. Clark: As I understand it, the original Forest Act amendment says up to three times the stumpage and bonus bid, and now this is new. This adds several different options at the discretion of the district manager to assess varying penalties, depending on the nature of the timber harvested and a variety of other factors.
W. Hurd: I'm referring to section 119(1)(b), where the senior official is now charged with the determination of establishing a market value for logs and special forest products. Clearly that places an additional encumbrance on the senior official, because the amount of the penalty is now equal to two times the determination. Is it fair to categorize this as a significant additional administrative penalty compared to what currently exists in the Forest Act?
Hon. G. Clark: It's not necessarily a significantly harsher penalty than what existed in the past. In fact, what this tries to do is reflect the actual market value of a product and say that the penalty is two times that market value. That may not necessarily be higher than what was in the previous act, which simply said it would be three times the stumpage and bonus bid. It's really just an attempt to give a more accurate assessment of the market value.
W. Hurd: In subsection (3), I assume the same official is charged with the responsibility of determining the costs of re-establishing a free-growing stand and any silvicultural treatments. I assume the government is doing this now under the Forest Act when there has been a default on stumpage, but this refers to unauthorized timber harvesting. I would ask for clarification on whether establishing the costs for a silviculture regime and re-establishing a free-growing stand are simply transfers from the Forest Act, or whether this is a new administrative penalty that is related only to the implementation of the Forest Practices Code.
Hon. G. Clark: This spells out more clearly that the Crown wants to recapture that which was taken away from it. It simply spells it out more clearly than does the existing Forest Act.
K. Jones: Could the minister tell us whether the reference to "special forest products that...could have been produced" refers to the entire chain of the value-added production of that piece of wood?
Hon. G. Clark: "Special forest products" is a defined term in the definitions section.
K. Jones: I'd specifically like to have an answer to my question. It doesn't just say "special forest products"; it says "special forest products that...could have been produced...." Does that include every phase of paper production as that fibre goes through a pulp mill, or every potential capability of remanufacturing a finished product, such as a crib, through the reman process? How is this going to be determined? This seems to be very wide open.
Hon. G. Clark: There is a detailed definition in the regulations. I'll send the member the regulations.
K. Jones: I'm not satisfied with the response that there is a detailed description. The detailed description doesn't relate to the clause that follows. It says: "...or could have been produced...." What does this mean?
The Chair: Shall section 119 as amended pass?
The member for Surrey-Cloverdale.
K. Jones: I'm really disappointed that the minister can't answer this simple question about a very important factor in this clause. This is something that has far-reaching impact. It's a wide-open situation. It's a penalty clause that is going to leave a great deal of discretion to the person who is administering it, and I think, to be fair and equitable, that it should be properly defined.
[1:30]
Section 119 as amended approved.
Sections 120 to 122 inclusive approved.
On section 123.
W. Hurd: I think this is a particularly important section of the bill. I understand that during the period before the act was actually presented to the Legislature, the stop-work order was used more frequently in the field by ministry staff when it came to enforcing the spirit of the code. I wonder if the minister could advise the committee whether in fact the stop-work order under this particular provision is likely to be more frequently applied because of the additional information that will now be required to come forward, the complexity of the code and the challenges of determining whether the management and working plans are in fact in compliance with the code.
My first question is whether this particular section provides the field staff with the ability to issue stop-work orders more easily. If the regional managers were under pressure to deal with information, they may not have the resources to deal with it. In fact, there is some concern here that the stop-work order would be a line of first defence rather than a last resort to enforce compliance under the code.
[ Page 12684 ]
Hon. G. Clark: I think it's fair to say that this is clearly a significant strengthening of the suspending power of the officials involved in administering the act. There is no question about that. One of the keys to making the Forest Practices Code work is to have that suspensive power. There is power now in the Forest Act, and this strengthens it. We are by no means attempting to use this in a blanket fashion, but it does allow a stop-work order if there is a contravention of the code. But that's only where there is a contravention -- and I think that is important.
W. Hurd: I would like to get one further clarification with respect to section 123. Subsection (3) implies an application to the Supreme Court, which I assume would allow the licensee to pursue legal remedies. Is it inherent in this section that where the licensee does not necessarily agree with the ministry, the ministry is then forced, as a further check and balance, to apply to the courts under this section? Does that afford additional protection to the licensee, or is it merely meant to strengthen the ability of the forest official to then proceed to some court action under section 147 in the event that he is unable to force compliance under the administrative part of the bill?
Hon. G. Clark: It's really the latter rather than the former. This means that if a stop-work order is given and the work isn't stopped, then the ministry or the minister can proceed to the Supreme Court to enforce the order.
Sections 123 and 124 approved.
On section 125.
Hon. G. Clark: I move the amendment that is at the table.
[SECTION 125, by deleting the proposed section 125 and substituting the following:
Consistency with other Acts
125. Any measures taken by a senior official under section 118(3)(b) as a result of the failure of a person to comply with an order under section 106(1) must be consistent with the Wildlife Act, S.B.C. 1982, c. 57, and the Pesticide Control Act, R.S.B.C. 1979, c. 322.]
Amendment approved.
Section 125 as amended approved.
On section 126.
Hon. G. Clark: I move the amendment that is at the table and has been circulated.
[SECTION 126,
(a) in the proposed subsection (2) by deleting "section 117(1) or 119," and substituting "section 117(1), 118(4) or (5) or 119,", and(b) by deleting the proposed subsection (3) and substituting the following:
(3) Despite subsection (1), a determination is not stayed if the determination is made
(a) under section 123(1), or
(b) under prescribed sections or for prescribed purposes.]
G. Wilson: I have to say that I am really impressed by the authority with which the Minister of Employment and Investment has undertaken to debate this bill -- almost as well as he does his own ministry. I'm not sure what that says about his own ministry or this bill. It's a very impressive act, I have to say.
Perhaps the minister might tell us, with respect to this subsection (3) amendment, where it says: "...a determination is not stayed if the determination is made..." Does that mean that there has to be a complete termination of any further appeal process initially, or can it be done as an interim measure? Maybe the minister might explain the significance of the amendment, given the effect of the determination.
Hon. G. Clark: The initial wording was: "...the chief forester may order that a determination, other than a determination to levy a penalty under section 117(1)...." So it simply adds "118(4) or (5)" to the section; it's a clarification of the section. Then it goes on to say: "Despite subsection (1)...." Subsection (1) is: "A determination that may be reviewed under section 127 does not become effective until the person who is the subject of the determination has no further right to have the determination reviewed or appealed." Despite that section, "a determination is not stayed if the determination is made (a) under section 123(1), or (b) under prescribed sections or for prescribed purposes" -- in other words, by regulation.
G. Wilson: So that 123(1) refers back to this act, to the stop-work order, right?
Hon. G. Clark: Yes.
Amendment approved.
Section 126 as amended approved.
On section 127.
Hon. G. Clark: I move the amendment to section 127 which is at the table.
[SECTION 127, in the proposed subsection (1) by deleting "or 117 to 120" and substituting ", 99(2), 101(2), 102(3), 106(1), 117 to 120 or 123(1)".]
Amendment approved.
On section 127 as amended.
W. Hurd: I think we're now into a key portion of the act: the "Administrative Review and Appeals" division. This minister will know, and I'm certain his colleague will be aware, that considerable concern has been expressed by licensees and others with respect to avenues of appeal. With respect to section 127 -- "Person affected by a determination may have it reviewed" -- the first question I could ask is whether a person in this case refers in any way to a corporation. When we talk about "person," are we referring to the broad range of individuals, companies and licensees that would be involved in forest harvesting, which is a definition we dealt with earlier on?
Hon. G. Clark: Yes, for this purpose a "person" includes a corporation.
W. Hurd: This might be a discussion that the committee may want to get into under section 129. I know the government has received a submission with respect to reviews and appeals, and there have been considerable expressions of concern that some of the commitments in
[ Page 12685 ]
the government's discussion paper with respect to the right of appeal have not been reflected in the legislation that we see before us tonight. Specifically, to my understanding, there's no review or appeal of land use, only decisions by government employees; no review or appeal from a refusal of a government employee to approve a plan or a permit; and no review or appeal from a stop-work order under section 123, which we dealt with previously. So the impression is that section 127 and the sections that follow have the effect of clearly limiting the avenues of appeal.
First of all, can the minister assure us that he and the government are confident that the avenues of appeal outlined in the discussion paper are accurately reflected in the legislation before us? That would be my first question. My second question would be whether, if that's not the case, we've seen what appears to be a limitation of the avenues of appeal. Clearly that's the impression gained, and I know the submissions to government on this issue have dealt specifically with the limitation of appeals under this section and the sections that follow.
Hon. G. Clark: My advice is that this is consistent with the discussion paper. There is no attempt to either narrow appeals or expand them. Second, the appeals are limited to operational decisions. A penalty is applied and someone can appeal it. It's not an appeal of a policy decision or otherwise; it's an appeal limited to operational decisions. As the member said, you can't appeal zoning or other issues. Operational decisions made can now be appealed, and it seems to me to be entirely appropriate.
W. Hurd: Earlier in the bill there was considerable discussion regarding the creation of special resource management zones, interpretative areas and sensitive areas -- a number of discretionary designations that can be made by a senior forestry official. I am seeking assurance from the government that in the creation of these special zones, so to speak, or special interpretive regions, the avenues of appeal of those designations are consistent with existing requirements of the act. In previous sections of the bill we have provided much more latitude for the ministry to designate areas -- even areas that are currently governed by an existing harvesting plan or a cutblock. I would seek assurance from the government that in the establishment of these new areas of interpretation, the same avenues of appeal exist with respect to those operational decisions that currently exist under the Forest Act.
Hon. G. Clark: There is no appeal of the government's land use decisions. But we do intend to fully involve stakeholders, including licence holders, in the work leading to the decisions made by government about land use designation.
W. Hurd: I found the relevant section that we have already passed. The establishment of resource management zones, landscape units and objectives, sensitive areas and objectives, and interpretative forest sites were all dealt with earlier in the bill. In my interpretation, all of these are new provisions that allow for a special designation by ministry staff at the administrative level. In the creation of these new designations, we are still allowing the same levels of appeal? Or is the ministry saying that these represent land use policy decisions by government, and even though they are made by district staff, they have the same effect as being policy announcements and therefore are not appealable? That's an important point that we need to get clarified under section 127.
Hon. G. Clark: There is no appeal of any land use decision under part 2. But remember, for example, that designation of resource management zones is made by the chief forester on the advice of cabinet. To that extent, there is no appeal, if you will, of that decision. These are not administrative. The lower level of the Ministry of Forests is not going to be making land use decisions which are not appealable. At the senior levels and at the RMZ level, it will be literally at cabinet's direction, so those are not appealable.
[1:45]
W. Hurd: Under the existing Forest Act I am certainly aware of an avenue of appeal for an annual allowable harvest designation by the chief forester. That right exists, obviously. The provisions I mentioned earlier -- the interpretative forest sites, the special sensitive zones.... When we dealt with that section of the act, they clearly stipulated that they could affect existing cutblocks. Cutblocks and harvesting plans that are already on file with the ministry could be subject to this special designation by the district manager and chief forester. There's an avenue for both to be involved in that type of land use decision.
To the extent that the harvest plans, the level of accessible timber, could be affected, I'm somewhat concerned to hear the minister say that there's no avenue of appeal for those kinds of decisions. As I review the submissions that have come to the opposition, one of the issues they're raising is that whereas the Forest Practices Code will have the effect of reducing harvest levels and affecting existing cutblocks, there appear to be fewer avenues of appeal of those decisions than there were before. If that's accurate, it's something that's of considerable concern, and justifiably so.
Hon. G. Clark: I think the underpinning of this discussion is really that ultimately land use decisions cannot be made by an appeal board; they're too important. Land use decisions are made by government. At the end of the day, if a decision made by government results in an annual allowable cut reduction, then the member is correct, I suppose: an AAC reduction can be appealed to the chief forester under the current act. In that respect, there may be an avenue for appeal. But we might as well be upfront about it and say that land use decisions are made by the government, or by the chief forester on the advice of the government, and they're not appealable through some administrative mechanism.
W. Hurd: Just to clarify it again, there is an opportunity for the licensee to request a review. The decision can be reviewed, but it is not appealable beyond the confines of the.... Is that a correct assessment? As we look through section 127, we see time limits for official reviews and reference to delivering the request for a review. Once that review has been completed by ministry staff and the determination is "no change," then there appears to be no avenue for appeal beyond that.
I must confess that I'm somewhat troubled by that, because if we look ahead to section 128, we see the Forest Practices Board having broad powers to have a decision reviewed. I think I'm correct in the assessment that we've
[ Page 12686 ]
seen a reduction in number of substantive appeal avenues available to licensees. That is the submission that has been made to the opposition, and I'm sure to the government as well. If that's an accurate reflection of what's happening here and if the concern is genuine, then I think it's something that needs to be on the record during the course of this discussion with respect to section 127.
Hon. G. Clark: Just briefly, I would reject the notion that this is somehow different from what exists today. Land use decisions are not appealable; this is not a restriction of that. We're now codifying in the new legislation a variety of things which talk about different land use designations. But they were never appealable, if you will, in the past. At the end of the day, of course, we always have judicial review, and the courts obviously ensure that these things are done correctly. It may be that we simply have a fundamental disagreement on this issue.
Section 127 as amended approved.
On section 128.
Hon. G. Clark: I move the amendment that is in the hands of members and at the table.
[SECTION 128,
(a) in the proposed subsection (1)(c) by deleting "under section 41 with respect to approval of a forest development plan or a range use plan" and substituting "under Division 5 of Part 3 with respect to approval of a forest development plan, range use plan or amendment to either of those plans.",
(b) in the proposed subsection (2) by adding ", and to the person who would be subject to the determination," after "Ministry of Forests", and
(c) in the proposed subsection (3) by adding ", and to the person who is the subject of the determination," after "notice of determination".]
Amendment approved.
On section 128 as amended.
W. Hurd: This is the first reference in the bill to the Forest Practices Board, which, according to this particular section, has independent authority to order a review by just about anyone. Is that a fair assessment of what's contained in this section?
I'm looking at subsection (1), which says: "The board may request a review of (a) a determination made under section 82...." As I flip back to section 82, I note that.... Well, that refers to the abatement of a fire hazard. Can the minister advise us whether there are any limits on what the board may order a review for? Clearly, if there is an intercession by an interested third party that makes a formal complaint to the board, as they have the right to do, the board may order a review of just about any activity that is currently undertaken on public and private land, if the private land is part of a forest management unit. Is a reasonable assessment of this section that it gives broad and somewhat sweeping powers to the board to order a review of just about any activity?
Hon. G. Clark: I wouldn't share that characterization of this section. This section allows the Forest Practices Board to intervene where it believes an improper decision or order has been made or where there has been a failure to make a required decision. For example, the board could request a review where there has been a public complaint on a specific decision. There has to be, it seems to me, an improper decision or order or a failure to make a required decision. I don't think that's as wide-open as the member suggests.
W. Hurd: One of the issues that we've been debating at length is the level of compliance for licensees and for the small business program, which is the responsibility of the Ministry of Forests. I would assume, with respect to section 128, that the board would have equal latitude to ferret out a transgression by the ministry under the small business program and then order a review of that activity, as well as by any licensee in the province.
Hon. G. Clark: That's correct.
Section 128 as amended approved.
On section 129.
Hon. G. Clark: I move the amendment that has been circulated and is at the table.
[SECTION 129,
(a) by deleting the proposed subsection (1) and substituting the following:
(1) If a request for a review is received, a review of a determination must be conducted by one or more persons employed under the Public Service Act, by a review official under section 127 or section 128(3). ,
(b) in the proposed subsection (5) by adding ", or a majority of the employees conducting the review if more than one," after "The employee who conducts the review", and
(c) in the proposed subsection (6) by adding ", to the person who is the subject of the determination" after "to the board".]
Amendment approved.
On section 129 as amended.
W. Hurd: With respect to section 129, we're talking about a review "by one or more persons employed under the Public Service Act after a request for a review is received...." I wonder if the minister could advise us whether we're looking at any substantive changes to the reviews here from those that currently exist under the Forest Act. Clearly, as I recall, the appeal provisions of a chief forester's order.... For example, reference is made to someone who can be appointed by the chief forester. Here we're talking about one or more persons employed under the Public Service Act. Can the minister clarify for the committee whether this represents a substantive change with respect to reviews that may be officially ordered or requested by the licensee or the Crown?
Hon. A. Petter: This is a new provision; it's consistent with the changes that are being proposed in the Forest Amendment Act, 1994.
W. Hurd: Can the minister basically confirm that the Public Service Act is a new provision as far as this appeal is concerned? I would ask the rationale for it. Is it merely to bring it in line with proposed amendments to the Forest Act, or is this particular provision just related to the enactment of the Forest Practices Code?
Hon. A. Petter: It is just a way of referencing the fact that the review must be conducted by a government employee, and the way that's referred to here is by reference to the Public Service Act.
[ Page 12687 ]
W. Hurd: I know there is a bill currently before the House that touches on this to some extent, but I understand there is a new provision here that allows the chief forester to designate a ministry employee to deal with a review or an appeal. Is that in any way a new provision under the code? I know there has been some concern expressed to the ministry about the fact that you could ask for a review within the ministry, appeal a decision and have it referred back to the same official in the ministry. I am looking for some indication from the minister that there are substantive changes to the review mechanism, and what the rationale might be for making those changes. The minister has indicated it is to bring it into line with amendments to the Forest Act. Is that the only reason?
Hon. A. Petter: Review is consistent with the Forest Act, but it is dealt with differently here because we are dealing with three ministries rather than one. I would caution the member not to confuse it with provisions in the amendments to the Forest Act which deal with delegations of the authority of the chief forester, which are different from these.
Section 129 as amended approved.
On section 130.
W. Hurd: I suppose this gets back to the discussion we had with the Minister of Employment and Investment with respect to appeals. This implies that the licensee is unable to launch an appeal before the matter is officially reviewed by ministry staff. Is that simply re-creating what currently exists in the act, or is there a limitation here where there has to be an official review by the ministry before any other avenues of appeal are available to the licensee or to anyone else involved in what we call forest practices under the definition of the act?
Hon. A. Petter: The simple answer is that it's consistent with the Forest Act. You can't jump levels, and that's what this provision provides.
Section 130 approved.
On section 131.
G. Wilson: Do subsections 131(8), (9) and (10) imply that this process effectively creates a sort of trial de novo situation?
Hon. A. Petter: I wouldn't describe it as a trial de novo. This is the formal appeal mechanism. The review mechanism is there as a prior mechanism that must be employed. If the review mechanism is not satisfactory, then there is a more formal appeal mechanism. That appeal is formal, and that's why the requirements are set out under this section, which correspond with what one would expect for a formal appeal involving representation, presentation of evidence, etc.
G. Wilson: The fact that there is a provision for the presentation of evidence and that submissions can be made with respect to facts and jurisdiction would imply, I would think, that this effectively allows for new evidence and provides for.... Because counsel may be present, it could provide that legal argument with respect to the submission of new evidence may be mounted. It seems that it's more than just an appeal. It seems that this is effectively a new process by which new evidence can be heard. Is that not correct?
[2:00]
Hon. A. Petter: It's an appeal, and the reason is that the evidence that would be looked to initially is evidence to determine whether the decision was arrived at correctly. If, and only if, it was determined that the decision was not arrived at correctly, new evidence might be considered to then make a correct decision. But it flows as an appeal, and the threshold question, as one would expect in an appeal, is whether or not the determination was made correctly by the decision-maker. For that reason it is not a true trial de novo; it is an appeal. Although it has many of the trappings that one might associate with a trial de novo, it is not a trial de novo.
G. Wilson: Just a last point of clarification on this. I think it's an important point. Does subsection 8(d), then, suggest that "present evidence" is only in support of a submission with respect to facts, law and jurisdiction in the original case?
Hon. A. Petter: The answer is essentially yes. The submissions as to facts, law and jurisdiction go to the facts, law and jurisdiction that are relevant to the propriety of the original decision, and it's only if the original decision is deemed to have been incorrect that additional facts may be considered in order to make a correct decision. So the failure to consider a fact might be germane to whether or not the decision was made correctly. But the short answer is yes, it must be germane to the appropriateness of the original decision.
W. Hurd: I assume that all these sections -- 130, 131, 132 -- relate directly to the Forest Practices Board, which is referred to in section 128. We're not dealing with any other type of appeal here other than the appeal to the board. Or are we dealing with the whole...? I'd just like to seek clarification of that, because when we look at section 128, it's the first time in the entire bill where reference is made to the Forest Practices Board. When we move on to sections 129, 130 and 131, it clearly implies that what we're discussing here now is the role of the board and appeals to the board. Are these sections divorced totally from section 128 and do they refer merely to the redress for licensees and others who may have avenues of appeal? Could the minister just clarify that?
Hon. A. Petter: The answer is neither. They're not dissociated, but nor does it provide for appeals to the board. The board, in fact, may be an appellant. The board may be a body that brings the appeal, but the appeals are to the Forest Appeals Commission. Under the code, the appeals will be heard by a Forest Appeals Commission, and under the code the board has a role in that it may be the body that institutes the appeal and be the appellant for the purposes of a hearing in front of the Forest Appeals Commission.
Sections 131 to 136 inclusive approved.
On section 137.
W. Hurd: With respect to the role of the commission, clearly what we have here is almost a quasi-judicial type
[ Page 12688 ]
of occupation, where we're talking about the same sort of litmus tests of oaths and admissibility of evidence applying to this commission. I wonder if the minister can possibly engage the committee in a somewhat broader discussion of how the Forest Appeals Commission differs in scope from what is currently available to those who are affected by forest practices and land use decisions in the province. Are these sections and the role of the commission designed to further the accessibility of the public to the appeal process? Are they designed to provide greater latitude for licensees who are engaged in harvesting? Do they provide more of a role for the ministry? I think we need an explanation from the minister, if he can provide it, on whether the role of the commission has changed and on what the overall rationale of that is.
Hon. A. Petter: The major differences here are that this appeals mechanism is a standing appeals mechanism, and the Forest Appeals Commission will be an ongoing institution that will develop institutional expertise and have independence.
In terms of the rules, as I understand it, right now the rules are essentially formulated out of the appeal process. What is being laid out here, the rules of evidence in section 137, formalizes and codifies the rules, and provides rules that are the epitome of natural justice requirements. They are the kinds of rules one would expect in a fairly formal setting, as is appropriate to this kind of appeal.
W. Hurd: Would this commission be authorized to hear appeals of a determination by the chief forester? Would that also be an avenue, or is that a totally separate process under the Forest Act?
Hon. A. Petter: The answer is no. This commission is charged with appeals under this act, not under the Forest Act and not with respect to the chief forester's determinations under the Forest Act.
Sections 137 and 138 approved.
On section 139.
Hon. A. Petter: I move the amendment to section 139 that is in the possession of the Clerk. That amendment will, in proposed subsection (2), delete reference to "the minister" and substitute reference to "any of the ministers," reflecting the fact that there are potentially three ministers involved here.
W. Hurd: A point of clarification on the amendment. When we talk about ministers in the plural, we're talking about the Minister of Environment and the Minister of Energy, Mines and Petroleum Resources in addition to the Minister of Forests. Are those the three ministers we're dealing with?
Hon. A. Petter: Yes.
Amendment approved.
Section 139 as amended approved.
On section 140.
W. Hurd: With respect to the order of compliance -- maybe this is a question I could more appropriately address under section 141 -- the minister made reference earlier to the right of judicial appeal. Since the commission may apply to the Supreme Court for an order, I would assume that the appeal mechanism to the Supreme Court exists, which is an avenue of protection for the licensee or the person who is deemed to have failed to comply with an order or a decision of the commission. Perhaps I can ask that question under section 141, which again talks about appeals to the court. In any event, I would certainly welcome an indication from the minister not only that the commission's determinations are appealable or that they are enforceable by the commission, but also that there's an avenue for the person who has failed to comply to appeal for some sort of redress or relief from the commission's decision.
Hon. A. Petter: This section, as I think the member is aware, deals with the power to order compliance by a court order. As the member has indicated, the question of appeal to the courts, which is a different question, arises not under this section but under section 141.
Section 140 approved.
On section 141.
W. Hurd: I guess this goes back to the question I attempted to raise under section 140. This says: "The minister or a party" -- having the right -- "to the appeal before the commission may, within 3 weeks after being served with the decision of the commission" make "application to the Supreme Court...." We're just seeking assurances from the minister that the normal redress of a judicial review is being contemplated here. Are we preserving the right of the appellant or the person named by a commission order to appeal the judgment in totality to the court system? Is the testing ground of the courts the ultimate enforcement of the order under section 141?
Hon. A. Petter: This is more than judicial review; this allows for an appeal on legal questions -- although not on the facts, obviously -- that go beyond mere jurisdictional issues. If it were judicial review alone, it would be confined to jurisdictional questions.
W. Hurd: In other words, all aspects of the complete decision of the commission would be totally reviewable by a court, and a determination would be made under this act or under any other acts that are relevant to the Forest Act. The courts would have a broad provision not only to interpret the Forest Practices Code but also the Forest Act or any other act that might affect the forest licensee in this case.
Hon. A. Petter: This is relevant to appeals under the code, so it will deal with this act and provisions relating to this act. Yes, the court will be able to examine all questions that were the subject of a decision by the commission that refer to questions of law or jurisdiction but not those issues that relate to facts, as I stated before.
Section 141 approved.
On section 142.
[ Page 12689 ]
W. Hurd: We're dealing here with a three-year window of opportunity for laying an information. I wonder if the minister could explain to the committee why the three-year window is used as a time limit. Is that a substantive change from existing legislation? Are we allowing more time for information to come forward with respect to transgressions that may occur under the code? What is the rationale for the three-year time period?
Hon. A. Petter: There are two changes here. One is in the duration, from two years to three years, and that's simply because investigations can take as long as three years in complex cases. The other has to do with reference to the fact that the period runs from the time the information first comes to the knowledge of a district manager. That means that if an offence occurred but was not known to a district manager, the clock would not start running. That's because in many cases the violation does not come to light for a number of years, and that should not trigger the limitation period; the limitation period should be triggered from the time it becomes reasonably known to officials, and they are in a position to take action.
Section 142 approved.
On section 143.
Hon. A. Petter: I would like to move the amendment to section 143 that is in the possession of the Clerk. It amends the proposed subsection (2) by making various deletions and substitutions that are contained in the papers that have been circulated.
[SECTION 143, in the proposed subsection (2) by deleting "63(1), (2) or (3), 64(1), (2), (3) or (7)," and substituting "63(1), (1.1), (2) or (3), 64(1), (2), (2.1), (3) or (7),".]
On the amendment.
[2:15]
W. Hurd: I must confess that I haven't had the time to look up subsections 63(1), 63(2), 63(3), 64(1), 64(2), 64(3) and 64(7), which have been deleted and replaced. I wonder if the minister could advise us about the rationale for this amendment, which appears to substitute a whole series of sections for another. There's a rationale for everything, obviously, and I'm assuming that even at this late hour there's a reason we're dealing with this amendment. I know we're getting through them at a rapid rate, but could he offer an explanation for this particular amendment?
Hon. A. Petter: The change is much less than might be indicated by all the numbers. In fact, if you boil it down, it takes account of the amendments we previously agreed to under sections 63 and 64 with respect to requirements around road maintenance and road deactivation. Those two changes are now referenced by the inclusion of two additional subsections that are now included in the revised section 143.
Amendment approved.
On section 143 as amended.
W. Hurd: I think this section about fines is one of the more onerous and controversial sections of the bill. I know that when we're talking about fines of $500,000 or $1 million and imprisonment under this section, we need to spend some time on it, because clearly the government has decided -- as a matter of philosophy, I think -- that a huge deterrent is the most appropriate way of enforcing enhanced levels of forest stewardship.
I suppose the concern that has been raised with the opposition -- and with the government, I'm sure -- is that this section is really a stick approach, with very few inducements or incentives. I know this gets us perilously close to debating some of the issues that were raised in second reading, but the government has clearly made a decision in this section to levy -- or at least allow for -- major court-ordered fines in the event of transgressions. If we look at what some of the fines could potentially apply to, they seem to be totally out of proportion to the kinds of damage that could occur. For example, with one particular fine, if somebody is not in possession of the appropriate documentation when driving a logging truck on a public road, my interpretation is that they could potentially be subject to a fine of $1 million.
I ask for clarification from the minister. When we deal with a scenario where someone could be fined $1 million, would that be where the ministry could identify that level of environmental degradation or damage? Or is there some concern here that we might see a fine out of proportion to what damage could possibly occur as a result of failure to have plans on file, for example, or a failure to follow other observations or requirements under subsections 143(1), 143(2) and 143(3)?
Hon. A. Petter: With respect to some of the fines about the handling of documents and things, I think you'll find that the levels of fines are quite consistent with other provisions in acts like the Securities Act. I would say more generally that a combination of incentives, disincentives, audits and on-the-ground enforcement is being contemplated through the code. A set of maximums is provided here that enables courts to make appropriate decisions about the level of fines. But I think one of the reasons there has not been a high degree of public credibility in the existing forest management regime is that the courts have not had the scope of fines available to them that are appropriate to the kind of damage that can result from violations of this act. When people see damage to major fish streams or to the environment that is on a major scale that results in $2,000 fines, that undermines confidence in forest practice regulation. These fines are designed to set more realistic maximums in which courts can then set appropriate fines for particular violations. They have to be viewed as part of the larger enforcement mechanism of the act, which includes audits, and which includes, I would argue, a variety of incentives and disincentives for companies and the ministries to comply with various parts of the act.
W. Hurd: The minister has received an expression of concern about the notion of multiple jeopardy, in which there can be a large court-ordered fine. There also exists the potential for other remedies against not only the licensee but also the employees of a contractor, the directors, and even the shareholders of a company. Is the minister at all concerned that there is any validity to this concern about multiple jeopardy? Because the licence is controlled by a corporation, for example, the work may be carried out by a contractor. It may be a publicly traded corporation, for example. There appears to be a huge club to deal with not only the owner of the licence or the
[ Page 12690 ]
licence holder, but all the people who are involved with that activity. Does this notion of multiple jeopardy have any validity? I know the minister has received concern about that and the potential for a whole series of penalties to be levied for what amounts to the same infraction.
Hon. A. Petter: These provisions relate to court-ordered fines and penalties. In their exercise of discretion, the courts will guard against the use of these kinds of provisions -- as they do other provisions -- in a way that will prevent and avoid double-jeopardy situations from arising. The courts take their lead from common-law principles and the Charter of Rights in respect of ensuring that provisions of this kind are not used in a way that would result in double jeopardy.
W. Hurd: This issue needs to be canvassed at some length in this section. The minister will recall that private actions have been brought under the Criminal Code by interest groups in British Columbia, and those actions have then been taken over by Crown counsel. There is clearly some avenue here for multiple jeopardy where the ministry may swear out charges calling for a million-dollar fine and someone else may swear out an action against the contractor. I don't see how you would control this kind of activity. There is a role for an individual under a private prosecution.
Getting back to the original premise with respect to this section, we see a government that utterly believes that if you triple or quadruple the fines, that will be enough to induce better performance. There is little incentive here. In fact, there isn't any incentive under this bill generally to invite people to approach the ministry with ideas for tenure enhancement or better forest practices. The whole thrust of this section is on the hammer and the stick, and little effort is being made to invite a more realistic penalty structure. That appears to be the philosophy behind this section. If I'm in error, I'm sure the minister will endeavour to correct me.
Hon. A. Petter: The philosophy behind this section is to give the courts a greater and more realistic range of penalties to ensure that the penalties are appropriate to the violation. It's also to ensure that those who are penalized are those who are responsible for the violation. In each case, those who bring charges will make that determination, but ultimately it will be a determination made by the courts, consistent with the principle that the fine will be visited upon the individual or company that is responsible for the damage.
W. Hurd: Another area of concern under this section is what appears to be different rules for governments than licensees. If we look at these court-ordered fines, the licensees are clearly responsible for transgressions by their employees. I assume the ministry, which administers a significant portion of the annual allowable harvest, is not liable for such transgressions by its employees, unless the activity is wilful or otherwise fraudulent in some way. Could the minister clarify that under section 143? Would it be fair to say that the employees of licensees, by virtue of simple transgressions of the code, would trigger these rather draconian court test cases, whereas a similar transgression by ministry personnel would not result in the same kinds of liability to the Crown?
Hon. A. Petter: As we discussed at a much earlier stage of this debate, these particular penalties do not apply to government officials. We discussed the differences between government and its role under the small business program and private licensees, and the different incentives and disincentives that exist. So this part is not germane with respect to government officials acting under the small business program.
R. Neufeld: I too want to be on record that I find the fines in some cases don't measure up to what the person has done wrong. Specifically, in the case the member brought forward earlier, a logging truck operator who cannot produce all the documentation or a logging plan as to where the logs are coming from could be subject to up to $100,000 and a year in jail. I know that's the maximum, but to be perfectly honest I believe it's a ridiculous maximum for that kind of an offence. If that person was doing something drastic or dramatic I could see it, but just because he or she doesn't have the documentation with them...it seems rather draconian to me.
I know the Ministry of Forests went all over the province asking for public input on all kinds of things that had to do with the Forest Practices Code. When I read through the summary of public input, I didn't see people talking anywhere about $100,000 or $1 million fines, or $100,000 fines for this specific issue of a logging truck operator not being able to produce documentation. In fact, if I read the document correctly, they talked about not just having all stick, but having a little bit of carrot. If companies are doing well, maybe you should relax some of the rules and regulations. Your government did the exact opposite of what the public asked you to do -- that is, initiated fines that in some cases are absolutely ridiculous.
[2:30]
The flip side is that those people within government who are responsible for the small business program should be subject to those same fines. That part of this section is really hard to take. We said we'd go back later to the matter of someone in government being totally immune to any one of these fines. We can't have that -- why should we? What respect will industry have for this, other than the big stick? They are certainly not going to be happy with exempting all government personnel, especially when government personnel are completely involved in the small business program, and should be responsible. There are some areas here that are just not palatable to anyone, especially to the contractors or people who work for those people. Those are the people who, in some cases, could really get hit, and that's not entirely fair.
Hon. A. Petter: The public consultation process disclosed that people very strongly support the notion that the courts should have at their disposal the opportunity to impose fines that are appropriate. The court will have to evaluate that in each case. If the maximum is well beyond what should be imposed for a particular violation under a particular circumstance, the court clearly won't choose the maximum; it will choose a fine farther down in the range. There was a strong feeling that the current structure did not afford the courts the range of fines that were appropriate to provide any kind of reasonable compensation, let alone disincentive for the damage created as a result of poor forest practices.
With respect to the issue of incentives, there are many incentives. The audit process will provide a form of
[ Page 12691 ]
incentive and certification. I have discussed and will continue to discuss with COFI and other organizations the possibility of a more formal form of certification that can provide incentives as well.
With respect to the role of the Crown and Crown officials, the Crown is in a different situation. Crown officials and managers do not profit in the same way as do owners -- and, potentially, employees of private companies -- from forest operations. By the same token, the Crown cannot impose the same kinds of sanctions on private employees that it can apply to its own employees, such as dismissal if employees do not adequately live up to their obligations under legislation. One has to take account of the fact that there are differences, but in both cases there are very serious requirements -- audit processes, etc. -- which will be effective in ensuring that Crown employees and, through these provisions, private companies live up to their obligations. That is the goal that is desired by us all.
R. Neufeld: Using that rationale -- regarding the logging truck driver that we are talking about, who under the act can be fined a maximum of $100,000 or one year in jail -- can you tell me how that logging truck driver is going to make anything extra out of hauling a load of logs that he doesn't happen to have the documentation for? If that person is working for someone, how is he going to benefit? It's no different, I guess, from the government employee that the minister talked about. Obviously, neither one of them can benefit from it. Someone else may, but it is hardly fair to talk about imprisonment for up to one year or a $100,000 fine for that person.
Hon. A. Petter: I don't want to speculate about what the arrangements might be with that operator or what incentives might be provided for the fact that they may be paid by the load, and therefore by cutting corners and regulations may profit, etc. I would simply point out that in respect of Crown employees, those employees who don't live up to the requirements expected of them can be dismissed. The logging truck operator cannot be dismissed by the Crown. It's a different situation, and a different regime applies.
I would also point out that the current regime under the Forest Act, albeit it has inadequate penalties, makes exactly the same dichotomy. This is not new. It is well understood that the kinds of sanctions, incentives and disincentives that apply with respect to Crown employees will be different -- but, nonetheless, effective -- under the code, as they are under the current act.
W. Hurd: I would like a clarification with respect to section 143(6), which appears to me to confer upon the Lieutenant-Governor-in-Council the ability, by regulation, to provide that a contravention of the regulation or standard is an offence. Are we dealing with the ability of the Crown, the Lieutenant-Governor-in-Council or the cabinet to change the definition of a regulation under this entire bill and turn it into an offence without any reference to enabling legislation in the assembly?
Hon. A. Petter: No, that is not what is happening. Unless you have provision in the act, you can't make contravention of a regulation an offence. This provision simply enables that to take place. It doesn't contradict other components of the act.
W. Hurd: We are dealing with a hundred or so regulations -- I have a copy of them here -- which will have the force of administrative penalty. I hear the minister saying that the cabinet may elect to apply a Criminal Code provision to any one of those hundred regulations. Am I hearing that they have the ability to declare it an offence? To me, an offence implies a violation of the Criminal Code in some way. Could the minister clarify, then...? I see him shaking his head. Could he clarify the need to declare a regulation an offence? Why not make them all offences? What is the purpose of allowing the Lieutenant-Governor-in-Council that kind of latitude under the bill we are currently debating?
Hon. A. Petter: In order for regulations to be effectively enforced, it may be necessary to make sure that breach of those regulations is viewed as an offence, and that appropriate penalties attach. That will have to be set out clearly in regulations. It in no way engages criminal law or criminal powers, which are the exclusive reserve of the federal Parliament. As an ancillary aspect of provincial power, it ensures enforcement of regulations or standards by making non-compliance an offence to which are attached certain penal consequences, but not in any way a Criminal Code offence.
W. Hurd: Subsection (6)(b) makes reference to a person convicted of an offence being liable to fine and imprisonment. Are they being imprisoned in an interpretative forest site? I don't understand how the minister can advise the committee that we are not talking about Criminal Code offences here. I am reading in this section that cabinet may declare a regulation to be an offence. Once it does that, it triggers a situation where contravention of the regulation or standard may result in a person being fined or imprisoned. Is that not a correct analysis of what this section enables cabinet to do?
Hon. A. Petter: If the member looks at legislation, it is very common to ensure compliance or to provide for compliance with regulations and standards by providing that breach of those regulations or standards entails an offence -- that does not make them criminal -- from which certain consequences flow. And normally, in fact, that's done through an umbrella provision that just presupposes that all regulations that are breached would result in that consequence. Here we've been more restrictive by providing that the Lieutenant-Governor-in-Council must affirmatively define which regulations would result in that consequence and what the consequence would be. So to that extent, I think we have been more restrictive and more guarded in this provision than the member will find has been the case traditionally in other statutes for many years in this province.
W. Hurd: I think this is an important issue to pursue, and I'm going to try again to clarify my concern with respect to this section. What I believe I see the cabinet being able to do is look at the hundred or so regulations that apply to the Forest Practices Code and make a determination that one or more need to be deemed an offence, and that therefore a breach of that regulation would result in fine and imprisonment. That's a pretty serious power to vest in the cabinet without reference to the Legislative Assembly. The minister is a lawyer. He probably knows more about this than I do. I hope he does, because this section appears to be onerous and
[ Page 12692 ]
all-encompassing to me. In fact, of the hundred or so regulations that currently exist, the cabinet could decide that it wasn't getting enough revenue out of one of them, or something, and needed to increase the level of fine or declare it an offence and have someone liable for imprisonment. Clearly, that renders section 143 as a whole almost redundant, because it might be theoretically possible for the cabinet to declare all hundred regulations to be an offence, and we could fill up the jails with forest licensees instead of Clayoquot protesters.
Hon. A. Petter: If it weren't for this provision, all regulations would be an offence by the natural implication of section 5 of the Offence Act, which automatically makes them an offence. The discretion we've given to cabinet here is more protective. It means that cabinet is more protective than the Offence Act would otherwise be, because the discretion in cabinet now must be exercised in favour of making these an offence. Normally, the presumption would be that they all are offences. If the member would prefer to simply presume that they're all offences, then that would be an alternative; but it would be an alternative that would be less protective and less guarded in terms of the rights of those who are subject to this section than subsection (6) now provides.
K. Jones: Could the minister tell us on what basis the three-year imprisonment is being established?
Hon. A. Petter: It corresponds with the maximum imprisonment provided in other statutes that contain similar types of violations of the same kind of gravity.
K. Jones: With regard to the three years, is there a limitation on the provincial capability of dealing with imprisonment?
Hon. A. Petter: It's provided that it doesn't entrench on criminal law powers.
K. Jones: I understand that if a person were imprisoned under this three-year term, they would not be able to serve that in a B.C. prison, because they're limited to two years less a day. Under what legislation in British Columbia is it possible to have people serve a sentence greater than two years less a day?
Hon. A. Petter: The question of detention and provisions for custody are pretty far removed from this provision.
K. Jones: I'm afraid I have to press this, because I think it's a matter of jurisdiction. It's a question that the minister has not really thought out that well. He has put forward a proposal that probably is not enforceable. I'd like to have the minister tell us under what section he is able to make this three-year penalty.
Hon. A. Petter: The member is wrong.
K. Jones: I'm not willing to accept the minister's stating that I'm wrong when he can't come forward with an answer himself. That's a cop-out; you're really not addressing the question. I've asked a very legitimate question that the people of British Columbia need an answer to.
[2:45]
W. Hurd: This is an important section of the bill, and I think it's been canvassed reasonably thoroughly by the members of the committee. My concern, however, is that there are approximately 33 members of this assembly whose ridings are wholly or partially dependent on the forest resource. Given the lateness of the hour, the fact that many members are not in the assembly and the import of this section and the sections we are dealing with, I certainly feel it appropriate now to move that the committee rise, report progress and ask leave to sit again when all members of the assembly may participate in committee in this important and historic debate.
The Chair: Unfortunately, we have not had any intervening business, and the committee is still in committee from the point of the last motion. Therefore your motion is out of order.
G. Wilson: We've probably reached the end of productive debate this evening. Clearly we have yet to deal with 32 amendments that this minister has brought in tonight. We have 180 sections of the bill yet to deal with, three of which are extremely important -- the Forest Practices Board, the Forest Appeals Commission and the transitional provisions of this act. Therefore I now move that the Chair leave the chair.
Motion negatived on the following division:
|
YEAS -- 4 | ||
|
Hurd |
K. Jones |
Neufeld |
| Wilson | ||
|
NAYS -- 26 | ||
|
Petter |
Priddy |
Edwards |
|
O'Neill |
Garden |
Dosanjh |
|
Hammell |
B. Jones |
Lortie |
|
Giesbrecht |
Smallwood |
Cull |
|
Gabelmann |
Clark |
Barlee |
|
Janssen |
Evans |
Randall |
|
Conroy |
Doyle |
Lord |
|
Streifel |
Jackson |
Copping |
|
Schreck |
|
Lali |
The Chair: Once again, we'll give members who have other duties to attend to and committees to attend the opportunity to get to them.
W. Hurd: Earlier in the debate, I made reference to the ability of private prosecutions with respect to environmental damage to....
Interjections.
The Chair: Order, please.
W. Hurd: I wonder if the minister could clarify for the committee whether, in addition to actions that may be taken by the Crown, the fines and the offences under section 143 could also be triggered by a private prosecution in the province? Could such an action proceed simultaneously with any actions by the Crown with respect to section 143?
[ Page 12693 ]
Hon. A. Petter: Yes, as is the case now. In the case of private prosecutions, the Crown then controls the proceedings. So there is no change.
W. Hurd: One assumes that under section 143 the ministry would pursue a complaint against a licensee or individual and that it would be the Crown that would be directed to bring forth charges and argue the case before the courts. In essence, what the minister is saying is that, on the one hand, the Crown would be directing an action on some aspect of a case on which, on the other hand, a private prosecution may occur. It has been the practice of this government and this Attorney General to take over private prosecutions where they relate to environmental degradation. We have the possibility under this section of a formal charge being laid and pursued by Crown counsel and, in addition, the possibility that they may then take over and pursue a private prosecution with respect to the same transgression or different aspects of the same transgression. Is that a possibility under section 143?
Hon. A. Petter: As is currently the case with this and other acts, where a private prosecution is brought forward, Crown counsel can either stay the matter or take it over. As a matter of policy, my understanding is that they would do one or the other, but they would not allow it to proceed independently. In doing so, they would no doubt take account of concerns about jeopardy and what actions they themselves might initiate in their independent capacity.
G. Wilson: I wonder if the minister might tell us what it is under section 143 that is of such urgency that we have to be sitting here at 3 o'clock in the morning, totally abusing the staff that are here with the minister, the staff that have to keep this building open and the staff of Hansard that are here....
An Hon. Member: Then sit down.
G. Wilson: I hear a member say "Then sit down," as if we should pass a major piece of legislation affecting one of the largest industries in the province without debate. Can the minister tell us what is in section 143 that requires this government in its arrogance to have everybody sitting up at 3 o'clock in the morning debating it?
Hon. A. Petter: There's nothing in section 143, and I would encourage members to pass it so that we can get on to section 144.
W. Hurd: It is the practice of the House to allow wide-ranging latitude under something like section 143 of this bill. I think it's important to read into the record that during this debate, the government will have introduced 70 amendments. The debate on this particular bill started after question period this afternoon, at 2:30; it's now 3 o'clock in the morning. The government has suggested that it's the normal practice and procedure of the House to pass a 365-clause bill and 70 amendments in what amounts to one legislative sitting. All I would say is: how soon they forget.
I think it's really regrettable that when we're dealing with section 143, which calls for the potential for million-dollar fines -- and the member for Powell River-Sunshine Coast has quite rightly pointed out that those fines might have the effect of destabilizing the entire forest industry in British Columbia -- the government feels that the process we're involved in tonight with respect to this particular section, and all the others we've dealt with, passes for sound public policy. I think that it's reprehensible and regrettable. It means that if we pass section 143, other members of this assembly, who I think should be commenting on this section, will obviously not be able to comment.
This particular bill -- and this particular section -- is a defining bill in this Legislative Assembly. The government has deemed this to be the most important public policy bill in this province. With respect to section 143, again, we're talking about fines and court-ordered penalties. The Ministry of Environment and Ministry of Forests spoke, through their press releases and press conferences, about lowering the boom on forest and land polluters and people who transgress on the forest land base. That was clearly the tone used.
[3:00]
It really defies comprehension that a bill that the government has deemed to be so vital to the public interest in this province would be dealt with in this manner. It's incomprehensible that the government would attempt to deal with section 143 at this time of night, when the people of the province are clearly not able to view the debate or participate. I don't imagine too many are. We're talking about a section of the bill which calls for some of the largest fines....
The Chair: On a point of order, the member for Alberni?
G. Janssen: I would remind the Chair that we have finished second reading. The member is being tedious and repetitious. I would remind him that we are in committee on section 143 of the bill.
The Chair: The Chair would remind all members that we are on section 143, which has been extensively canvassed. I would ask members to speak directly to this section and avoid second reading debate.
W. Hurd: Section 143 really speaks to the philosophy of the bill. Of necessity, we find it necessary to talk about some of the issues that were raised in second reading debate. Clearly the fines called for under section 143 are a critical component of the bill.
Again, hon. Chair, other members of this assembly might feel strongly that million-dollar fines for routine transgressions, such as being unable to produce documentation on a logging truck, are of significant interest to their ridings. Again, I think the question has been put to the minister: why did the minister...?
Interjection.
W. Hurd: Hon. Chair, the government's pizza has arrived. I can only assume that's what the bell means.
I think it's reprehensible that at this time of night we are dealing with section 143, which has such widespread repercussions on forest-dependent communities in the province of British Columbia. At this point in time, hon. Chair, there are four members of the opposition to debate it and a group of government members who drift in and out of the assembly, based on what time the pizza wagon arrives. Does that pass for sound public policy? I certainly think the minister has been asked a reasonable question. He's obviously convinced that we need to press on. He's
[ Page 12694 ]
utterly convinced that this is the best forum for dealing with section 143 and the fines under this bill. He obviously feels that introducing 70 amendments, without providing the opposition with any previous opportunity to review them, represents sound public policy. I would ask why the minister feels that this is the best way to deal with section 143 and any other section that we may labour through tonight.
For this minister, who has staked the reputation of his government on this particular piece of legislation and on the other pieces of legislation that we will deal with, to deal with an important defining bill for his government in this manner is contemptible. There is no other way to describe it. It's a repudiation of the press conferences the government has held and of the taxpayers' money that was expended to get the message out that this bill -- and in particular the million-dollar fines under section 143 -- is the best method of dealing with the forest resource in the province. It's contemptible. I can't understand why, at 3:05 a.m., the minister, having been posed a direct question by the hon. member for Powell River-Sunshine Coast on why he feels this process is serving the people of the province well, refuses to answer. He has declined to answer. I can only assume that it's sheer cowardice....
The Chair: Order, hon. member. We have overstepped, I think, the bounds of tedious and repetitious debate. The hon. member has asked a question at least nine times now, by the Chair's count, and I think we should allow the minister a chance to respond and get on with dealing with section 143.
Hon. A. Petter: I'm perplexed by the member's attitude. As the member himself indicates, these provisions have been discussed by the government not only in the last few weeks, but ever since this legislation was contemplated. They were well known to the opposition. This bill has been available to the opposition for weeks, if not months, to review and discuss. I think the provisions are quite clear. If members disagree, we have before us representatives of the two formal opposition parties and the leader of another group in the House, all of whom are the spokespeople appropriate to comment on this bill. So I'm not sure why the member is not inclined to debate the issues and in the process wants to get into a lot of rhetoric around the hour.
I'm here to do the people's business. This provision is, as the member himself noted, completely consistent with everything this government has said it would do with the Forest Practices Code. It comes as absolutely no surprise. If the member disagrees with the million-dollar fines, he should stand up and say so, and not hide behind a lot of procedural gobbledegook.
The Chair: On section 143, with a new question, the member for Surrey-White Rock.
W. Hurd: Thank you, hon. Chair. Yes, I have a new question with respect to section 143. Despite this vaunted consultation process the minister has alluded to, I have representations on this bill from the Council of Forest Industries, the Union of B.C. Municipalities, the Outdoor Recreation Council of British Columbia, the British Columbia Chamber of Commerce and the registered Association of B.C. Professional Foresters, submissions that have come in to the opposition and this government in the course of the last 15 days. Obviously, the minister has no regard for the people of the province or for the opposition; that's fair enough. But these organizations and groups are going to have to live with the results of the code we debate and pass in the assembly tonight.
I ask the minister whether he's comfortable that the interests and the concerns of these organizations are being addressed -- as we debate a bill which under section 143 calls for fines of up to $1 million -- at 3:10 a.m. What about these individuals, who may wish to follow the debate, participate in it and phone the opposition as they are wont to do with respect to some aspects of this bill that we are debating in committee? How can the minister suggest that he is doing the people's business, when clearly he's received the same submissions that we have and is basically denying those groups and individuals the opportunity to participate in this debate through the opposition members -- or through the government members who, despite the fact that they have time to engage in ordering pizzas into their offices, don't participate in what is the most important bill...?
The Chair: Hon. member, I'm sure you're well aware...
Interjection.
The Chair: Order, hon. members.
...of the standing order against commenting on participation by members in debate. I ask you to bear that in mind with your remarks.
G. Wilson: Clearly, this government is going to have to explain what it's doing here today -- or tonight.
An Hon. Member: Or morning.
G. Wilson: All right, at 3 o'clock in the morning. I've already stated I believe this to be an absolute abuse of staff time and of the legislative privileges of this government. Personally, I'm prepared to stay here until whatever time we get it done -- ten o'clock tomorrow morning or whenever it is. However, I think it's the height of arrogance that this government would inflict this upon other people who don't have that same kind of privilege I do to be able to walk in and out of this chamber and come and go as I choose. This minister needs to reflect on that.
I have just one question with respect to these fines, and it comes back to a question raised by the member for Surrey-White Rock. It has to do with the provision of fines with respect to the charges that may be laid by the Crown. I say that because we've seen an unprecedented movement by this government to try to essentially curtail freedom of assembly and freedom of speech. We've seen this government move in to provide....
D. Streifel: Poppycock.
G. Wilson: I hear the member for Mission-Kent saying this is poppycock. He doesn't believe pushing six charges against an individual when five have been dismissed -- and the sixth one is being dismissed -- is an abuse of justice from the Attorney General of this government, whose government moved to try and prevent freedom of assembly and to have freedom of speech curtailed in this province.
Now we're introducing a provision for fines that is going to provide wide latitude for this government to put those fines in place for a person convicted of offences, and
[ Page 12695 ]
that will allow this government to once again bring down the heavy and draconian arm and be able to put in place with this legislation the kind of restrictions that they deem warrant the heavy arm of government.
If there are going to be violations of acts, we can understand how those violations can be spelled out in an act and how fines can be administered. Can the minister tell us: why the latitude under subsections 143(2), (4) and (6) with respect to the provision of fines? Why would you not establish a set procedure and allow the courts to establish how those fines would be applied?
Hon. G. Clark: I rise to support this section of the bill, and I'm very interested in the debate that we've had. I think it does point out a fundamental difference between the government's agenda, when it comes to protecting the environment and forestry in this province, and the opposition's. I'm a little surprised, hon. members, to see the opposition members opposing million-dollar fines. I can't think of a better cleavage than on this section, which deals with charging polluters and those that break the Forest Practices Code -- those that are not living up to this code, which tries to establish a new standard for forestry practices in the province. There need to be tough enforcement mechanisms, tough fines, tough ways in which we can make sure that the highest levels of environmental protection are in place when it deals with forest harvesting.
When we go around the world dealing with protecting our livelihood in this province and dealing with forest practices, we hold up the Forest Practices Code and in particular the section that says there can be up to a million-dollar fine for those companies that violate these high standards. I say that's a key selling point for this bill.
[3:15]
It's a key issue that I'm delighted the opposition are spending hours debating here today. I'm delighted that they're taking this to be their stand. This is the issue upon which they want to attack the Forest Practices Code. This is the issue where they stand and want to draw a line in the sand and say: "Well, other things we might not agree with, but this million-dollar fine against polluters and those that violate forest practices is where we draw the line. We don't want to see the million-dollar fines against forest companies that break these tough environmental and forest practices." They don't want to see that.
This is critical to the bill. I agree with the members. It's an important distinction between the opposition, that doesn't believe in these kinds of tough fines for those who violate forest practices, and the government, that not only believes we need leading-edge environmental practices and want world-leading forestry practices, but believes that the companies and individuals that violate those practices, the companies and individuals which do not live up to the spirit of this law, should pay a price.
Only then, if we have tough forestry practices and tough fines, will we be able to go and market around the world that this Forest Practices Code meets the standard. Only then, when it has enforcement mechanisms that make sure they live up to the standard, will we be able to take this around and be proud that we are leading North America when it comes to this kind of Forest Practices Code.
So I'm delighted that the opposition members have chosen this section to oppose, because I think it clearly shows a distinction between what they believe and what the government believes.
Interjections.
The Chair: Order, member for Surrey-Cloverdale. The member for Peace River North has the floor.
R. Neufeld: The Minister of Employment and Investment just stood up and said that this is where we're making our stand on this bill, and he knows that's entirely incorrect. He misleads people when he says that. We have debated this bill right from section 1 through till now. It's 3:20 in the morning. We're talking about a section of the bill that could impose million-dollar fines. I don't have any problem with having some fines in place. I do have a little problem with the bit of stupidity that goes along with how this government determines how much a fine is. Let's go back to section 27(1). You can be fined $100,000 or imprisoned for not more than one year if you don't carry documentation in a logging truck. To be perfectly honest, that's stupid.
Let's go on a little further and read section 54, which says:
(1) A person must not use a road on Crown land for timber harvesting and related forest practices unless the person is authorized to do so under a road permit or road use permit.
(2) A person must not use a forest service road for timber harvesting and related forest practices, or any other industrial purpose, unless the person is authorized to do so under a road use permit.
(3) A person must not use a road, for which there is a road permit, for timber harvesting and related forest practices, or any other industrial purpose, unless the person is authorized to do so under the road permit or a road use permit."
When you go back to section 143(3), a person who doesn't have a road use permit to drive a pickup down a forestry road -- and the minister related that to me -- is subject to a stupid fine of $100,000, or they go to jail. That's how stupid this is. That's what makes the opposition angry. You can go around the country and brag all you want about million-dollar fines and what this is going to do for British Columbia. I'll tell you -- and I told the minister before -- that if we just started talking about forest practices in British Columbia in a more positive fashion instead of such a damned negative one, maybe we would get a little further ahead. But no, this government chooses.... The Minister of Employment and Investment gets up at 3:20 a.m. and wants to irritate things a bit further. To be perfectly honest, some of those fines are ridiculous.
Interjection.
R. Neufeld: The member for Skeena, someone who really depends on logging, says to fine them more to see if we can't run a bit more of the forestry industry out of British Columbia; let's see if we can't get rid of a bit more of it. These kinds of things send industry away from British Columbia. I go back to your "Summary of Public Input": "How we listened." How many did you listen to? Thirty communities across the province, including 2,000 people who attended and 4,500 people who responded by phone or by mail. I went through this, and nowhere....
The Chair: Order, hon. member. We're coming close to second reading debate, and I know the member doesn't want to go over the line. I would encourage him to confine his remarks to section 143.
[ Page 12696 ]
R. Neufeld: I was just taking the same latitude that the Minister of Employment and Investment did just moments ago. I thought that set the stage. He's kind of the leader; in fact, he took the lead role just a few minutes ago.
My question is about the size of the fines in section 143 and where they're applicable. Some of them are ridiculous and stupid. I say that the government didn't listen one bit, because nowhere in the summary of public input do they talk about fines of that size or nature. They talk about carrots, not about the stick. This government has decided to use the stick. I can tell you of many instances where you can be driving down a logging road and you won't have this lovely little road use permit that you've got to run up and see the regional manager for. Maybe the minister could tell me why you should be subject to six months in jail and a $100,000 fine. Don't you think that's a bit ridiculous?
Hon. A. Petter: I don't think it's ridiculous at all. What I think is ridiculous and....
Interjection.
Hon. A. Petter: Maybe, instead of laughing, the member would listen when he has asked a question.
What is rather sad is the failure to understand the implications of taking a heavy piece of equipment down a logging road at a time of year, for example, when serious environmental damage could result from the improper utilization of that road. The member may not be aware that much of the environmental damage -- indeed, I'm told the majority of the damage -- to our forests and streams has resulted from either poor road construction or damage to roads through improper use. I regret to say it, but the member's point displays the ignorance of the member in terms of the very issue that we're trying to address through a serious Forest Practices Code. This is providing the courts with the discretion -- and this is a key point; it is not prescribing what the fine will be but providing the discretion to the courts -- to create a suitable fine.
The consequences of someone driving down a logging road without the adequate permit could result in serious damage to that road and in soil erosion and damage to salmon streams. That could create damage well in excess of $100,000. Some might argue this is not sufficiently stringent enough. We have tried to provide the courts with appropriate thresholds so that compensation at least approximates the amount of damage that is created and so that there is no longer a situation in this province where people are free to damage the environment that is there for all British Columbians, or to damage salmon and other resources. This is to provide adequate provisions so courts can fairly adjudicate the appropriate level of the fine. To superciliously stand up in this House and make light of this kind of protection is, in my view, an incredible disservice to what this code is trying to achieve and a disservice to the member and his party's understanding of what this code is trying to achieve. I think it is a seriously regrettable intervention on the part of the member, and I'd ask him to reconsider his position on this section.
R. Neufeld: I'm not being ignorant, Mr. Minister. I'm telling you what the member for Surrey-White Rock just told you about all the submissions in regard to the size of fines that they have received, we have received and I'm sure the member for Powell River-Sunshine Coast has received.
Whether you have a permit or not.... If you don't have a permit, you can drive down the road and wreck it. If you have a permit, you can drive down the road and wreck it. Tell me, what is the difference? That's the question I asked earlier. The ridiculous part about the bureaucracy that your government likes to set up is that you have to obtain all these permits. A permit doesn't mean anything; it's just writing on a piece of paper.
Hon. A. Petter: Again, the question displays part of what got us into this mess -- that is, the view that just lets those who have a legitimate economic interest in the forest make determinations about protection of the long-term forest. That view led to sympathetic administration under previous regimes and got us into this mess.
This code is saying that the public has a responsibility, through the institution of government, to steward the resource. That stewardship of the resource is a broader view that is represented in the role played by the public service. The reason a permit is required is that through that permitting process a public official -- in this case the district manger or designated official -- can make a determination about whether the economic interest in using that road is justified in light of the potential environmental damage that could result. If there is a serious danger of environmental damage, that use will not be permitted. If there is no threat of serious environmental damage, the use will be allowed. The notion that underlies this code is that there is a responsibility in government to steward the forests. That's what sets this government apart from previous governments and, I regret to say, from members of the opposition. As a government, we accept a responsibility to steward the resource and not just allow the resource to be exploited, and that's what this Forest Practices Code is all about, and I daresay that's what demarks our position from that of the opposition. That's an opportunity for the opposition to simply vote against this section. If you disagree with this section, vote against it and let your views be known. That's the way the democratic process works.
G. Wilson: I'm not going to re-engage the Minister of Employment and Investment, although it's tempting to do so, because we haven't heard such a lot of nonsense from that minister in some time.
However, I believe this Minister of Forests to be a reasonable man. I think he's an intelligent person, and he's doing what he believes is best for this province in the introduction of section 143. There are some concerns with respect to this section, but I believe this minister knows that what is doing a disservice to the people of this province is having three of the main sections of this bill.... And they aren't the sections we're dealing with right now, quite frankly. The Forest Practices Board, the Forest Appeals Commission and the transition provisions are the three main issues that remain to be debated at this hour, plus 180 sections of other material and 32 amendments this minister is bringing in.
[3:30]
This is a reasonable, intelligent minister who realizes that a vast number of staff are here, staff who are tired and wish to go home. When he looks at this bill, he knows that there has to be sensible, honest, intelligent debate because it is indeed a hallmark piece of legislation. What will tarnish this legislation more than anything -- and this minister knows it -- is the report that this government
[ Page 12697 ]
rammed it through at an early hour in the morning, because they had an agenda such that they couldn't bring this bill in before July 2 or 3.
Interjections.
G. Wilson: The members are saying we've had it before us; that's true. And so has the government. So why is the government bringing it in during the dog days of a session? Why didn't it come in two weeks ago? Last week we sat in this House debating estimates. We took time off while people went to fundraising dinners. We took shorter hours last week, and today we sit here at 3:30 in the morning debating a hallmark piece of legislation, which this minister, who is a reasonable minister and an intelligent man, knows is the wrong thing to do. So I would appeal to this minister to take a rational position and recognize that now is the time to rise and report progress. We will reconvene at 10 a.m. when we've had some rest, and we'll complete the debate on this bill.
Hon. A. Petter: I will leave it to the House Leaders to decide on the way in which the committee conducts its business. I certainly believe that members have had more than adequate opportunity to consider these provisions and to debate them.
W. Hurd: Whereas the minister has left the matter to the discretion of the House Leader and has assured us that this particular bill has been out there, that public discussion has been ample and that we should be able to proceed with 365 clauses and 70 or 80 amendments, I think it's important at this time to read into the record some of the comments the opposition has received from interest groups that do not share the minister's conviction that this bill has received ample airing.
Referring to section 143 again, which is the fines, I think it's important to read into the record a concern brought to my attention by the Association of B.C. Professional Foresters who, with specific reference to section 143, point out: "There is emphasis on penalties with no incentives to recognize good performance." This particular letter was sent to me and dated June 21, 1994, obviously long after the bill was introduced and read a first time in this assembly. The Association of B.C. Professional Foresters goes on to list a long series of concerns they have with respect to section 143 and other sections of the bill that we have passed. I think some of their concerns with respect to this section need to be read into the record. They point out: "The heavy emphasis on standardized administrative regulations militates against securing the type of professional input which is critically needed at the field level. This situation is exacerbated when policing and enforcement of regulations are slated to be carried out by nonprofessionals." The letter goes on. Despite all the opportunity that has been offered to members in the opposition and to interest groups to respond, the letters continue to come in with respect to section 143 and other aspects of this bill. They point out: "There is no clearly understood assessment of how the new regulations and standards will socially and economically impact on B.C.'s many resource-dependent communities."
The Association of B.C. Professional Foresters is a responsible organization that has serious concerns with respect to section 143, and they have indicated such in their letter. I understand that 45 percent of ministry staff are registered professional foresters; they belong to the association that sent this letter to the opposition and to the minister on June 21 expressing grave concerns about the Forest Practices Code. It's going to be interesting for me to correspond with the association and advise them that a section of the bill that they have serious concerns about was dealt with by this government at 3:35 a.m. -- a time when, I assume, few of their members would be up to follow the debate.
Since we have to deal with the bill at this time and in this manner, I think it's important to note some of the other concerns they had that directly impact on section 143. They point to "the lack of higher-level plans to establish forest management objectives and desired goals; i.e., the forest resource management objectives of the Crown are not clearly identified."
Hon. A. Petter: Point of order. Hon. Chair, the comments the member is now reading into the record from the letter are no doubt relevant to sections that we've already dealt with but have no bearing whatsoever on section 143. They are completely extraneous and irrelevant to the debate.
The Chair: Hon. member, the Chair is having some difficulty with the quantity of comments that are being offered that seem to be outside the scope of section 143. The Chair would ask the member to confine his comments to those that are strictly relevant to section 143. We have canvassed this area extensively for some considerable time now, and tedious repetition is something we're trying to avoid.
W. Hurd: Thank you, hon. Chair, for that advisement.
I think the Minister of Employment and Investment said it best: section 143 is a get-tough approach by the government. That's the approach that they're convinced will work, and they contend that forest-dependent communities in the province have been clamouring for it.
Referring again to the letter that was sent to the opposition by the Association of B.C. Professional Foresters, they talk about "the need for establishing a government-led partnership with industry, consultants and universities to adequately train professionals and technicians so that the code can be consistently interpreted and applied." When we talk about a regime under section 143 that establishes $1 million fines for licensees and mandates serious penalties for transgressions, yet does not require the same amount of accountability from ministry staff, that clearly is an issue that the professional foresters quite rightly expressed concern about. It implies that the partnership that could and should exist between the members of their own association cannot exist in this case, because the foresters that are employed by the ministry will, under section 143, not carry the same type of accountability or responsibility as would the professional foresters employed by licensees in this province.
The concerns go on and on. I think it is important now to also read into the record a message from the British Columbia Chamber of Commerce, an organization at which I know the Minister of Employment and Investment is a frequent speaker. The message never gets any better, I'm told, but he does go often.
With respect to section 143, the British Columbia Chamber of Commerce -- merely days ago, I note, on June 30, 1994 -- pointed out that they are very concerned about
[ Page 12698 ]
the draconian measures. Let me find the appropriate phrase here: "In the fairness of implementation, the chamber expressed concern regarding compensation for expropriation, development of sound rules which benefit the environment, and finally, fairness of enforcement." So the chamber is expressing serious reservations. I think it's important that the membership was invited to offer their observations with respect to section 143, and I can't believe that the concerns they have raised with respect to this section can be adequately addressed at this time of the evening.
Another letter that addresses the ramifications of section 143 was received on June 27 from the Union of B.C. Municipalities. Let me find the appropriate section. It urges the ministry to meet with the various stakeholders who are concerned about the implications of section 143. I assume the Union of B.C. Municipalities received a copy of the new bill and the accompanying standards. They were moved to write a letter of concern on June 27, 1994.
For the minister to suggest, as he has during the considerable and lengthy debate on this section of the bill, that the input and the decision of the jury is in, and all we have to do is proceed through this in a 24-hour marathon, is patently ludicrous. It's an affront to these people, who, in the course of the last three days, have provided the opposition with letters of concern with respect to many sections in this bill.
I referred earlier to the Outdoor Recreation Council, from whom a message was received expressing concern. I know that the Council of Forest Industries has made a submission to government. Today I received an invitation to compare Sweden's new forest policy and its provisions for penalties and enforcement with section 143.
The minister is steadfastly and absolutely wrong when he suggests that there is no latitude or avenue for considerable debate on this bill, and in particular on section 143. The faxes and letters are coming in, and people are expressing serious reservations and concerns about the provisions of this particular section.
I think the member for Powell River-Sunshine Coast has made an excellent suggestion to the minister. I know he has been receiving the same submissions we have with respect to this section and others. If we continue this debate, these organizations will not have the opportunity to follow the proceedings in this assembly, since I don't imagine too many foresters are in the habit of watching the assembly at quarter to four in the morning. I don't see how the public interest can be served by debating an important section such as this one, and the ones to follow on the Forest Practices Board and the regulations that govern its existence, in the manner that we're dealing with it here tonight.
Section 143 as amended approved on the following division:
|
YEAS -- 27 | ||
|
Petter |
Priddy |
Edwards |
|
O'Neill |
Garden |
Dosanjh |
|
Hammell |
B. Jones |
Lortie |
|
Giesbrecht |
Smallwood |
Cull |
|
Gabelmann |
Clark |
Barlee |
|
Janssen |
Evans |
Randall |
|
Conroy |
Doyle |
Lord |
|
Streifel |
Jackson |
Wilson |
|
Copping |
Schreck |
Lali |
|
NAYS -- 3 | ||
|
Hurd |
Neufeld |
K. Jones |
On section 144.
Hon. A. Petter: I move the amendment to section 144 that is in the possession of the Clerk, and that amendment has the effect of adding a subsection (5) that provides for a fine pertaining to offences under subsections (2) and (3).
On the amendment.
W. Hurd: I wonder if the minister could describe the rationale for introducing a further fine under the timber-spiking offence. Is this particular section in addition to the penalties provided for in the Forest Act, or is the amendment strengthening the provisions under the act? Can he offer to the committee a comparison between what is currently called for under the Forest Act and what is now called for under the Forest Practices Code?
Hon. A. Petter: This brings into the Forest Practices Code the provision that is now in the Forest Act, but it increases the fines. What was inadvertently left out of the bill was a fine relative to offences under subsections (2) and (3), and the amendment now remedies that omission and provides for a fine which is, as in the case of other fines under this section, a substantial increase beyond the fine that was provided under the Forest Act for a similar offence.
K. Jones: In the absence of documents being presented for other members of the House to know what the amendment is, I would like to have the minister read the amendment.
Hon. A. Petter: I was under the impression that copies had been circulated, but I would be happy to read it. Section 144 is amended by adding the following subsection (5): "A person convicted of an offence under subsection (2) or (3) is liable to a fine of not more than $10,000 or to imprisonment for not more than 6 months or to both."
Amendment approved.
Section 144 as amended approved.
On section 145.
Hon. A. Petter: I would like to move the amendment to section 145 that is in the possession of the Clerk and that adds a subsection (4) to section 145 in the language that has been circulated.
On the amendment.
K. Jones: In the absence of printed documents, I would like to ask the minister to read the amendment.
Hon. A. Petter: "A person does not commit an offence under subsection (2) if the person is (a) building a road in accordance with an operational plan, (b) acting in accordance with section 59(1), or (c) carrying out fire control or suppression in accordance with this Act and the regulations."
[ Page 12699 ]
Amendment approved.
On section 145 as amended.
W. Hurd: Section 145 brings into the definitions the term "irreparable damage." Obviously, when we define irreparable damage, we talk about the reduced ability of the land to support the same amount of forage or cover that existed previously. Irreparable, however, implies damage that can't be reversed. I wonder if the minister could provide the committee, first of all, with an idea of whether "irreparable damage" is a term that heretofore has existed in the Forest Act. If it has, could he provide us with a definition of what irreparable means under this particular section?
Hon. A. Petter: The term is not used in the Forest Act. Irreparable damage is defined in subsection (1) here, so I won't try to redefine it. An example would be where a poor logging practice resulted in a hillside giving way and, as a result, being no longer able to support the growth of trees. It would be that order of magnitude.
W. Hurd: Then why would the government introduce an amendment under subsection (4) that would basically exempt a person from committing an offence if they're "building a road in accordance with an operational plan," which one would assume would be on file with the ministry? Does the fact that the operational plan has been received and approved by the ministry then exempt the roadbuilder from erosion or any other type of activity that might contribute to a slide or a scouring of a hillside, which would certainly be as close to irreparable damage as one could imagine? What is the rationale here for what appears to be an amendment to exempt road construction from being liable for irreparable damage?
Hon. A. Petter: It's just intended to make clear, for example, that where a road is constructed that would occupy the area referred to -- that is, one or more hectares of land that because it was converted to road use was not able to support trees -- that would not violate the requirements of this section and be considered irreparable damage. One would hope that interpretation would exist anyway. But for the sake of clarity, it makes it clear that the construction and use of that road in accordance with operational plans does not constitute irreparable damage.
K. Jones: Could the minister tell us...? He seems to be referring to road damage. I don't see any reference in this section to road damage whatsoever.
Hon. A. Petter: The member asked me to read out the amendment, and I did so. The first paragraph in the amendment is: "A person does not commit an offence under subsection (2) if the person is (a) building a road in accordance with an operational plan...."
K. Jones: Section 145(2) refers to "causes." Could the minister tell us what constitutes causes?
Some Hon. Members: Aye.
K. Jones: The question was a very important one. The minister was prepared to answer or attempt to answer. I'd like to hear what he had to say.
Hon. A. Petter: My answer is that "causes" means causes.
K. Jones: "Causes" means causes -- that's a great answer. When one establishes law -- and that's what we're doing here -- one has to make sure that what one is doing is both fair and enforceable. When a particular section of a clause like this is intended to be vague and is unable to be defined, even by the minister who has provided it, then that becomes a serious problem.
For a person to commit an offence that causes irreparable damage to Crown forest land is something for which that person is going to appear in court and may be fined upwards of $1 million. Yet the minister cannot define what constitutes a cause. The minister has spent a lot of time on this bill, I presume. He must know what this bill is about, yet he does not know what a very important word in this particular section means. To cause something has to have a basis on which to cause that. There is no basis on which the cause is described here, therefore the minister probably has a piece of legislation that won't be enforceable.
[4:00]
That doesn't seem to bother the minister at all. In fact, he thinks it's a big joke. He is prepared to carry on this session at 4 o'clock in the morning, because he can't answer a very simple question. He doesn't have an answer to that. I presume he hasn't spent enough time on his homework or research to prepare a simple answer.
G. Janssen: On a point of order, the Chair must recognize that the member has gone beyond the bounds of tedious and repetitious debate here. We are not in second reading debate of this bill; we are in committee stage of a section. I ask the Chair to remind the member that we're in committee stage and to refer to the section.
Interjection.
The Chair: Hon. member, tedious and repetitious is what you have become. Either ask a question, or the Chair will recognize another speaker. We are on section 145 as amended.
Section 145 as amended approved unanimously on a division.
On section 146.
The Chair: Members who wish to take an opportunity to phone constituents or attend other meetings may now take that opportunity.
W. Hurd: With respect to section 146, I'm referring to subsection (1), where a proceeding, conviction or penalty for an offence under the act does not relieve a person from any other liability. This is an issue that was raised in an earlier section of the bill and clearly indicates the possibility of multiple jeopardy in terms of the application of the act.
I assume that the minister, who is obviously performing other duties, has now delegated authority back to the Minister of Employment and Investment, and I'm wondering how many people will be employed in the province after this bill becomes law.
I wonder if the minister can advise us whether or not this section clearly implies that once fines under section 143 are dealt with during a case in which Crown counsel
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might be involved, there are other penalties and remedies that would be applicable under the act. We could see, under this particular section, a multiple approach for enforcement with respect to the same transgression.
Hon. G. Clark: The answer is no.
W. Hurd: The minister has issued a categorical assurance that the answer is no, but the language of the section clearly would dictate otherwise. It says: "A proceeding, conviction or penalty for an offence under this Act does not relieve a person from any other liability." That would assume that if there were a failure under the code and a court action were brought and a million-dollar fine were levied, any other liability that might apply under the act would apply in this case. The minister has issued a categorical statement that simply isn't reflected in the language of the act. I think the language of this particular section certainly invites a more wide-ranging response than a simple no, because it's not what the language in the section seems to imply.
Hon. G. Clark: Double jeopardy is not allowed by the courts.
W. Hurd: Then perhaps I could ask the question: after a case goes to court and is dealt with and a fine is levied -- which I assume the minister expects would happen in a number of cases -- would the person then face any other liability? Clearly, under the "Remedies preserved" section in this particular act, the Crown would appear to have the right to enforce other liability. I'd settle for assurance from the minister that we aren't referring to double jeopardy here in any way.
Hon. G. Clark: No, it's the opposite. The court can take into account the amount of any administrative penalty.
Section 146 approved unanimously on a division.
On section 147.
W. Hurd: We have a provision in section 147 that allows the following: "If the minister considers that a person is not complying, or has not complied, with an order made under" all the relevant sections "the minister may apply to the Supreme Court for either or both of the following: (a) an order directing the person to comply...(b) an order directing the directors and officers of the person to cause the person to comply...."
I would ask the Minister of Forests, who is back with us, whether this particular order of compliance allows the government any additional powers that it didn't have under the Forest Act to seek redress for an order through the courts. This gets back to the issue that was raised with respect to section 146 and the notion that even after a case has gone through the courts, there's an additional liability. With respect to the multiple-jeopardy issue that I spoke of earlier, could we be dealing with simultaneous cases here, where the Crown may be pursuing an action under section 146 and a separate order for compliance or mediation under section 147?
Hon. G. Clark: This is a new section that allows the minister to apply to the Supreme Court to enforce an order. That didn't exist in the Forest Act.
W. Hurd: I wonder if the minister could offer a rationale for the additional powers of going to court to enforce an order when there's a sizable number of administrative penalties and even legal penalties with respect to fines. The district manager has the discretion to levy administrative penalties, which might range from reductions in cut to foregoing certain rates of annual allowable harvests under the development plans. The ministry has identified a need for this ability to access the courts and undertake what amounts to a court order. I would certainly welcome some sort of direction from the government as to why it feels this additional remedy is needed.
[4:15]
Hon. G. Clark: These could apply to non-forest companies; therefore a court order would be helpful. Obviously a suspension of licence wouldn't apply to a non-forest company.
K. Jones: I'd like to have the minister tell me if this is an example of that situation. A company had a permit to log a section of forest land and contracted it to another person, and that other person was unable to complete clearing and burning the brush pile. That was not reported to the original operator or licensee by the Forest Service for three years. Does this mean that the original licensee will now be faced with a major penalty and will be forced to take this action, when he had no knowledge that there was still a problem or that that was an offence under those circumstances? It was a failure on the part of the Forest Service to indicate that it was an unsatisfactory situation, and the person had no knowledge of the situation. Does that mean this will cause that person and his family to be put in jeopardy as a result of the Forest Service not informing him of a problem?
Hon. G. Clark: I'm sorry, I didn't quite get that. I wonder if the member could explain it.
K. Jones: Being 4:20....
The Chair: Order, hon. member. The Chair would just like to offer the suggestion that it would be easier for the House if the member could state his question clearly and concisely and remember that the longer he takes in asking the question, the harder it is sometimes for members to hear.... I would ask him to be brief and concise and to pick up the pace a little bit. Continue, hon. member.
K. Jones: It's very hard to do all that at 4:15 or 4:20 in the morning. It takes a little bit of time to think about what you are going to say. Hon. Chair, I'm afraid I can't abide by your ruling or recommendation. I will just have to carry on and try to present my case in the best manner that I possibly can.
The Chair: Order, hon. member. Are you challenging the Chair?
K. Jones: About what?
The Chair: On the question, hon. member.
K. Jones: I'm continuing, hon. Chair.
Section 147 approved unanimously on a division.
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On section 148.
W. Hurd: Section 148 -- and, I guess, 149 to some extent -- implies the additional ability of the Crown to pursue an action through the penalty section we dealt with previously, and of course, to have the person affected be subject to additional orders. I wonder if the minister could clarify whether the intent of sections 148 and 149 is that in addition to million-dollar fines or half-million-dollar fines, the courts now have the ability to order remedial actions -- other than just the fine. During debate on that section we were led to believe that the fines were designed for the Crown to recover the amount equivalent to the damage that could have occurred in the land base. I am reading in section 148 that there may now be a provision for the Crown to seek additional damages beyond the level of the fines imposed. Could the minister provide the committee some clarification on that point?
Hon. G. Clark: Courts can simply order a person to comply with the provisions of the act.
Section 148 approved.
On section 149.
Hon. G. Clark: I move an amendment to section 149, which reads:
[SECTION 149, by deleting "and" and substituting "or",]
On the amendment.
W. Hurd: I don't believe that rather inconsequential amendment changes the intent of section 149, which implies that once a person is convicted of an offence under the act, in addition to any other penalty, the court may order the person convicted to pay compensation in order to make restitution. Would the minister clarify whether the court may make that order in lieu of a fine? Or would we be dealing with the courts issuing a fine called for under the act, and then ordering additional restitution and compensation based on whatever damages were deemed to have occurred as a result of the transgression of the code?
Hon. G. Clark: Instead of "under this Act 'and' the regulations," it's under this Act 'or' the regulations."
Amendment approved.
On section 149 as amended.
W. Hurd: I think the question is still valid. If a person is convicted of an offence under the act, they could be subject to fines of $1 million. The courts would obviously have wide latitude over the extent of the fine but would nevertheless be required to levy a fine. This section, which deals with restitution, suggests that other remedial orders may be issued. The person may be forced to pay compensation or make restitution. My question is a basic one: would the fine be built into the process, or would the restitution and compensation be something that the courts might award in lieu of a million-dollar fine, for example?
Hon. G. Clark: This gives the courts the latitude to add to the fine to make restitution.
Section 149 as amended approved.
Section 150 approved.
On section 151.
W. Hurd: I think section 151 merely mirrors a section that already exists in the Forest Act with respect to the right to cut and remove timber on private land adjacent to Crown land. Again, we are dealing with a section of the bill that does contain an encumbrance on private land, and I wonder if the minister could advise us whether the private land referred to in section 151 is the land that forms part of a forest management unit, or are we dealing with a broader definition of private land here? My second question is whether this in any way mirrors the Forest Act and the restrictions that apply to harvesting activities on private lands adjacent to Crown land.
[4:30]
Hon. G. Clark: It refers to any private land adjacent to Crown land. It's just so that they cannot claim they were mistaken about the boundary between their land, or any private land, and Crown land.
W. Hurd: In a previous section of the bill, we dealt with a requirement by the private land holder to advise certain principals of the boundaries of the land. Can the minister tell us whether there is a requirement under this section for the private land holder to advise anyone else of where the boundaries might be? Or is this strictly that if he strays across the boundary and cuts Crown land inadvertently, it's not a defence to say he was not aware of where the boundary line was?
Hon. G. Clark: In that sense, you're correct; it's the same as the Forest Act.
Sections 151 and 152 approved.
On section 153.
W. Hurd: This gets us back again to the concerns raised by the Outdoor Recreation Council and others with respect to prosecution for unauthorized recreation sites and trail-building. This would imply that where a trail is constructed in violation of the act, some rather severe penalties will accrue not only for Crown land but also in the event that the trail moves from private land onto Crown land. During the course of this debate, I wonder whether we can achieve -- and I realize it's probably going to be elusive -- a more adequate, accuratedefinition of a recreation trail or recreation site. There continues, as recently as a week or so ago, to be a great deal of concern from recreational users that the kinds of trails they build for access may be subject to prosecution under section 153.
Hon. G. Clark: Of course, if we were going to have a discussion about that definition, it would have been better in 102, not in this section. But clearly that will be a matter for court interpretation. It just treats trail-building the same way as we just dealt with harvesting of hay or timber.
K. Jones: On this question of trail-building, just travelling on a route through multiple, historic usage constitutes building a trail. It doesn't require taking any physical action to build a trail, just continuous use. Does that mean that this legislation is going to enable action to be brought against those persons who have used a trail for a period of time, which then makes them in violation?
Hon. A. Petter: This section simply makes it clear that the offence under section 102, which we previously discussed, cannot be avoided by claiming ignorance as to
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the boundaries with respect to trails that can be built either on private land or on other Crown land.
K. Jones: So we're down to prosecuting hikers and back-country people now, are we? We're really after every single person that might do anything in the woods. Is that the way the minister is acting with this type of legislation?
Hon. A. Petter: Not unless hikers are also constructors, rehabilitators or maintainers of recreation trails and do so in a way that violates section 102 and then try to claim that they didn't know where the boundaries were.
K. Jones: Does this mean that the people who went in and built the access trails to the Carmanah will now be prosecuted because they didn't get a permit from the minister? Is the minister thinking he's that high and mighty?
Hon. A. Petter: No, there's no retroactivity. We dealt with this issue under section 102. Had the member been here, we could have had a full debate. The member is trying to re-create, under section 153, a debate that did take place under section 102, and I don't think that's appropriate.
Section 153 approved.
On section 154.
W. Hurd: Just a brief question under section 154(d), where it says: "...person who is (d) employed under the Public Service Act, a member of the board, commission or council, if any, or a person retained under section 191...." This is a requirement for interference, non-compliance and misleading statements. Obviously, we're referring here to someone who is on the appeals commission. Is section 154 a provision that also covers the members of the appeal commission with respect to any interference or non-compliance that they may be involved in, or is...? Could I just get a clarification of section 154(d)?
Hon. A. Petter: This section deals with the misleading of government officials -- or, indeed, the commission -- with respect to the matters under the code.
Section 154 approved.
On section 155.
W. Hurd: Again, this refers to specific references made to court orders. This is clearly a change from the Forest Act, giving the courts power to undertake a series of other measures in addition to a conviction under the act. I just wonder if the minister could advise the committee why he feels the additional powers conferred upon the courts would be desirable or necessary under this particular section.
Hon. A. Petter: In order to ensure effective enforcement, it's desirable to give the courts a broader range of tools to use to ensure that the purposes of the act are being achieved. That's what this section seeks to do.
Sections 155 to 157 inclusive approved.
On section 158.
W. Hurd: Just one clarification under section 158. The need is identified here to deal with a corporation, directors and officers in a special section. Are we just recognizing the fact that a corporate entity makes it more difficult for the act to apply? Can the minister clarify why this particular section is needed when in an earlier section we identified "person" as being the equivalent of a corporation? What is the rationale here?
Hon. A. Petter: This section is similar to section 163 of the Forest Act. A corporation is a legal person and normally takes legal responsibility for an offence, leaving the directors and officers immune from penalty. However, as the member will be aware, in some cases the action of the corporation may have been a result of a direction or lack of action of its directors, and in such cases the penalty is intended to punish as well as to make restitution. The directors and officers of the corporation must also be at risk if a there is a conviction, and this section simply allows that to occur.
W. Hurd: If the offence is committed by a person contracted to the corporation, would the same liability and penalties accrue to the directors and officers of the corporation? Under one section I think we dealt with the possibility that if in fact there was a violation of the code all the way down the chain, all were severally liable for the violation. Is that an accurate reflection of what we're dealing with under section 158?
Hon. A. Petter: As the section suggests, it depends on who commits the offence. If the offence is committed by a contractor, then this section would apply where the contractor is a corporation and that corporation has a director or officer who "authorized, permitted or acquiesced in the offence"; otherwise, it would not apply.
G. Wilson: I have a quick clarification question. The minister is not saying that the liability can be charged against both the corporation and the director. The minister is saying, presumably, that there is a charge against the director. Is that not correct?
Hon. A. Petter: There is liability that attaches to both the corporation and the directors. It's to bring an action against both a corporation and its directors where the director has, as suggested by this section, "authorized, permitted or acquiesced in the offence."
Sections 158 and 159 approved.
Hon. A. Petter: Given the hour and the very constructive debate, I move the committee rise, report progress and ask leave to sit again.
Motion approved.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. G. Clark moved adjournment of the House.
Motion approved.
The House adjourned at 4:43 a.m.
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