[ Page 8185 ]

Prayers.

C. Clark: Joining us in the gallery today is a school trustee from district 42 in Burnaby. Her name is Barbara Fisher. I hope the House will make her welcome.

P. Calendino: I'd like to correct the member; it is district 41. My colleagues and I would like to join the member for Port Moody-Burnaby Mountain in welcoming school trustee Barbara Fisher. Would the House please make her welcome.

Hon. A. Petter: It is my tremendous pleasure today to welcome to the House my cousin, Frances Buchignani, and her husband Alwin from San Francisco. With them is my mom Lisl Petter, who is up in the gallery visiting us. I'd ask the House to make them welcome.

Hon. U. Dosanjh: On behalf of my colleague the Minister of Finance, I am delighted to introduce to the House 23 grade 11 and 12 students from Spectrum Senior Secondary, with their teacher Ms. Finch. They are in the galleries visiting us. Would the House please make them welcome.

J. Dalton: Visiting us today is Mr. Fred Herfst, the executive director of the Federation of Independent School Associations. I know that Fred -- and certainly I, and I hope many others -- will be very happy with the victory of Collingwood School in double-A boys' rugby on Saturday. Please welcome Mr. Herfst.

G. Wilson: Visiting us from Powell River today is Mr. Don MacGregor. The House will remember Mr. MacGregor as the gentleman who repatriated the medals of Canada's most celebrated veteran: his father. Accompanying Mr. MacGregor is Ms. Trish Schuler. Would the House please make them both welcome.

Standing Order 35 Motion

The Speaker: Thank you. Proceed with your statement.

M. de Jong: Hon. Speaker, for months now, citizens in northern and rural communities across B.C. have been without full hospital services. In Golden things are about to get worse. As a result of this government's dithering, the people of Golden are today facing the possibility that they will be without physician services following the closure of their medical clinic, which is threatened for June 19. Last night 500 people gathered in Golden to express their frustration, to the point where they have taken to writing to the Premier of the province of Alberta seeking assistance, because they feel abandoned by this government.

The prospect of being without medical services that the rest of us take for granted represents a real emergency for the people of Golden. It's urgent, in my respectful submission, that this House give clear direction to the government on this matter. I hope that the members for Columbia River-Revelstoke and Bulkley Valley-Stikine, and others, will take advantage of this opportunity to stand up and urge that this government and this House debate this very urgent matter.

The Speaker: I ask the hon. member to present to the Chair all the materials required in support of his argument.

Interjection.

The Speaker: We need your supporting documentation to the table, please.

In response, I recognize the Minister of Labour, acting as Government House Leader.

Hon. D. Lovick: There is no doubt, of course, that the issue articulated by the member opposite is serious and important. I'm sure that nobody in this chamber would for a moment minimize the seriousness of the issue.

The issue we're dealing with, however, according to the rules of this chamber -- standing order 35 -- is the urgency for debate. I would simply remind members opposite and all members of the House, and anybody who might be watching these proceedings, that we have discussed the issue of the services of doctors and the facilities in the north on numerous occasions. Indeed, the discussion is ongoing insofar as Ministry of Health estimates are ongoing. In those areas and for those reasons, hon. Speaker, it seems to me that this motion does not qualify, frankly, as a standing order 35 matter.

The Speaker: Thank you very much, hon. member. I will reserve my decision.

Oral Questions

RELEASE OF DOBBIN REPORT

Hon. P. Priddy: Yesterday I received the final report from Ms. Dobbin. I think it is a very good piece of work. The ministry and my staff are currently looking at that and at what the actual costs are contained in her recommendation. I would expect that to be public very shortly, as will be the report.

The Speaker: First supplementary, Leader of the Opposition.

G. Campbell: I believe that if the minister has the report, it is time for the report to be made public to all the people in this province, particularly the people in rural communities who have been without hospital services for over four months

[ Page 8186 ]

Hon. P. Priddy: It took a month to do the report; I got it late yesterday. I want my own staff to be able to do the analysis and formulate our response to that. I expect that it will take a day or two at the most. I think we have not only the right but the responsibility to do that.

Hon. Speaker, while many people in this province have been without services for four and a half months, let's be clear that they're without services because their physicians have chosen not to provide those services to them. It's not because of something that the government has said to them or caused them to do, or some kind of policy or some kind of regulation. Those physicians have chosen not to respond. . .

The Speaker: Thank you, minister.

Hon. P. Priddy: . . .to the emergency needs of their patients.

The Speaker: For his second supplementary, the Leader of the Official Opposition.

G. Campbell: People in rural communities feel that this government has been ignoring them. We know that in fact this government has ignored the options, the solutions, that have been put forward. This minister undertook, to those communities, that Ms. Dobbin's report would solve the problem within a month. Over four months have gone by since this crisis came to fruition -- since the hospitals were closed to people in those rural centres. So my question to the minister. . . . She says that she now has a final report. Why did she not make the interim report available to the public so we could have taken interim steps to provide rural health services to the people in this province who need them?

[2:15]

S. Hawkins: People and patients in rural areas have been waiting far too long for this government to solve the rural health care crisis. On April 23 Ms. Dobbin was appointed to solve the rural health care crisis. On April 24 this minister announced that Ms. Dobbin was free to give interim recommendations. Now rural patients want to know, because they've been suffering for far too long: if this minister did receive any recommendations, oral or written, why were they not released when they were received?

Hon. P. Priddy: I did not receive from Ms. Dobbin. . . . What I said to her at the time was: "If you have interim recommendations that, before the end of your report, would be successful in getting the physicians back to work, then I would be happy to implement them." Those recommendations were not there. She had ten days or two weeks left for her report when she spoke with me. There aren't some magic interim recommendations that have left people without service for two weeks.

By the way, yes -- people have been without service. And on the other side of the House, we've had MLAs standing up and supporting the fact that doctors have withdrawn services for their patients. That's unconscionable.

The Speaker: For her first supplementary, the member for Okanagan West.

S. Hawkins: This side of the House is the only side that has been speaking out for patients for the last four months. Hon. Speaker, none of those members have spoken up for patients once in this House -- not one member. Last week Ms. Dobbin told two rural physicians that she had filed interim recommendations and that this government chose not to act on them. What we want to know and what patients want to know is: why did this government not make them public at the time that she received them so patients and physicians could judge for themselves whether the rural health crisis was solvable?

Hon. P. Priddy: When I saw the quote in the paper on the weekend -- that that's what Ms. Dobbin had said to two physicians -- I called her and I asked her if she had said that. She says that she did not. Not being there for the conversation. . . . She says that she did not say that.

Hon. Speaker, let's be really clear here: $450,000 was on the table for the northern health board -- rejected by the physicians. They said $650,000 would fix it; I put $650,000 on -- rejected by the physicians. I said we could look at altering the northern isolation allowance; they rejected it. So this has not been a time of not trying to find solutions. . .

The Speaker: Thank you, minister.

Hon. P. Priddy: . . .but the ones we've found have been rejected by the physicians.

PHOTO RADAR INSTRUCTION MANUAL

Can the minister responsible for photo radar tell us if he thinks, at a time when government is cutting back on education and when it can't find money to fund health care, that $400,000 for a how-to manual for photo radar is money well spent?

Interjections.

The Speaker: Order, hon. members.

Hon. M. Farnworth: The payment that the hon. member talks about was part of the cost of introducing photo radar over the broad term. It was part of an agreed-to schedule as certain parts of the program were implemented. This was done back in 1996.

Hon. Speaker, what I find interesting, though, is that they are choosing to pick apart a program and focus on a little bit here and a little bit there, when in fact that program has contributed to a reduction in accidents in this province. It is part of a program that has helped ICBC to turn a profit this year.

[ Page 8187 ]

C. Clark: The government's own bill says that they're paying $400,000 for the verification rules handbook. You know, when Elizabeth Cull gets paid $33 a word for her nine-page communications strategy, that starts to look like a pretty good deal when we're paying $152 a word for this how-to manual for photo radar. Wouldn't the minister agree that if his government is spending multi-millions of dollars on the equipment to enforce photo radar. . . ? Shouldn't the taxpayer get the how-to manual for free?

Hon. M. Farnworth: I repeat the answer to the hon. member: this is part of a broad program around photo radar, which is part of ICBC's program. It is resulting in a decrease in claims, which is resulting in a profit for ICBC in the first three-quarters of this year -- and last year -- and which is part of a program that is allowing us to ensure that we can, hopefully, freeze rates again in the coming year, just like they've been frozen for the last three years.

M. de Jong: Hon. Speaker, again I'd urge this minister, like others, to go back to his own documents, and he'll see from reading the invoice just what it was that they paid for. I'm curious -- $400,000 for a manual. There's a picture in that manual -- a beautiful picture of pavement. Of course, it is a directional piece, and the caption is: "This camera was pointed too low." Hon. Speaker, I'm trying to find where. . . .

Interjections.

The Speaker: Hon. members, order, please.

M. de Jong: I'm inclined to ask the minister whether he got Yousuf Karsh to do the pictures for this thing -- at $400,000. But what I'm going to ask him is: how does he justify spending $400,000 of taxpayers' money on a manual for a photo radar scheme that's been a boondoggle from day one?

Hon. M. Farnworth: The hon. opposition member's questions are pointed neither too high nor too low; they're just not pointed at all. The fact of the matter is that the photo radar program, which this member is criticizing the government for right now, has been so successful that we've seen a reduction in claims. That $400,000 is part of a program that saved lives across the province. Every life that's been saved is worth a lot more than $400,000. This program has once more allowed rates to be frozen -- it's now three years in a row -- claims to come down and profits to be up.

The Speaker: First supplementary, member for Matsqui.

M. de Jong: Well, you can always tell when you've hit close to the mark, if the minister doesn't want to be scrutinized line by line, invoice by invoice. He doesn't want to be scrutinized, because it won't withstand the scrutiny.

This question is pretty simple. We know. . .

Interjections.

The Speaker: Hon. members, come to order.

M. de Jong: . . .that Brian Smith was negotiating with the government on behalf of ATS around about this time. Can the minister tell us whether Mr. Smith was involved in the negotiations that gave rise to this bargain purchase of a $400,000 manual?

Hon. M. Farnworth: Once again we see that what the opposition is really trying to do is smear the name of a prominent British Columbian they happen to disagree with. Mr. Smith's role with ATS has been well documented. If that hon. member has any allegations at all against Mr. Smith, I suggest he take them outside and say them, and see how fast his head spins before he gets a lawsuit.

G. Farrell-Collins: It's amazing how sensitive the government gets when you start to get close to the mark. The reality is that Brian Smith was involved in this deal while it was being negotiated, and the taxpayers end up on the hook for $400,000 for an instruction manual.

Some of the wonderful tidbits of advice that are in this 22-page instruction manual include that photos must not exhibit errors such as "camera out of focus." The last time I bought a camera, the instruction booklet was included in it; I didn't have to pay extra. Can the minister tell us if he has read that instruction manual and whether or not he thinks it's worth the $400,000 that the people of B.C. have paid for it?

Hon. M. Farnworth: I think that any program that saves lives in this province, any program that results in a reduction of claims to ICBC, any program that's allowed us to freeze rates and any program that's part of an initiative that so far this year is continuing on that track is worth every penny that's been spent on it. Our program -- I said it once before, and I'll say it again for the hon. member's benefit -- has resulted in claims going down, premiums being frozen and lives being saved, and that's what's important.

Ministerial Statement

ENVIRONMENT WEEK

No other jurisdiction anywhere has made a stronger commitment to sustainability, and no other jurisdiction can match the record of this province. During the past year alone, we protected the Northern Rockies wilderness, an area bigger than Nova Scotia; we introduced landmark legislation for fisheries renewal and fish protection; we launched new industrial stewardship programs to keep nearly all beverage containers out of the garbage, as well as the majority of household hazardous wastes; and new regulations came into force to ensure the cleanup of contaminated sites and hazardous spills. At the heart of these new initiatives is greater involvement by the public, more power for local communities and, above all, practical strategies to ensure that industry, consumers and all resource users take greater responsibility for their impacts on the environment.

During Environment Week this year, British Columbians are being asked to make a personal commitment to the air we

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I encourage all members to support the events taking place in their communities. Over the next few days, I hope that as many of us as possible will try to set an example by parking our cars and trying an environmentally friendly alternative such as walking, cycling, sharing a ride or using public transit. It is when we all act as stewards of our environment and put health and environmental objectives at the fore of our own choices that we truly make a difference.

[2:30]

M. Coell: Thank you for the opportunity to respond to the ministerial statement.

I think that all too often we concentrate on environment weeks and bike weeks. I think what British Columbians are asking is that every day become Environment Day and that this House concentrate on the environment every day.

We have inherited a truly great province. We are a new society in this country, and we haven't managed the environment very well. It's incumbent on all British Columbians and on all people on both sides of this House to make every day Environment Day and every day Clean Air Day.

When you look around the world, the economies that are robust and strong also have strong environmental policies. The economy in British Columbia is faltering, and every year for the last five years we've seen cuts in the Ministry of Environment. This is not good enough. The people of British Columbia all agree on the need to preserve and protect this province. We on this side of the House pledge to do our part, and we hope the government will do their part.

Tabling Documents

Orders of the Day

WORKERS COMPENSATION
(OCCUPATIONAL HEALTH AND SAFETY)
AMENDMENT ACT, 1998
(continued)

On section 15, section 141 (continued).

Hon. D. Lovick: Mr. Chairman, we began discussing this important section of the bill last week, and indeed, I think we had a good debate -- an exchange of opinion that it seemed to me was helpful to all of us. The subject we're discussing under section 15, section 141, is the right of workers to refuse unsafe work. I made a point at that time of saying that I had struggled mightily with what this section had to say, and I was not persuaded by the argument that the approach we're taking in the bill was necessarily the right one. Accordingly, I want to table an amendment today on this measure, and with your permission, I shall give that to you now. I shall also, of course, make copies available to my colleagues on the other side.

The burden of the change is essentially this: what we would do is take the existing wording and delete a particular clause. The clause I am referring to is (3)(b), and it says essentially that the right to refuse unsafe work does not apply if the risk referred to is inherent in the worker's work. After considerable reflection, after some agony and some anxiety, I am persuaded that we do not need that section. In other words, the argument that the danger is not inherent in the work should not be required for a worker to refuse what is deemed to be unsafe work.

Let me explain that, if I might. I think we would all agree -- and indeed I would say, based on the conversation I had with my colleagues on the other side of the chamber last week -- that the provision as drafted, the original, places a significant limitation on the right of workers to refuse unsafe work. While we all acknowledge that there are some occupations which are inherently dangerous -- for example, police work, firefighting, etc., -- we must also acknowledge, it seems to me, that there are certain legitimate circumstances where these workers should also have the right to refuse. In short, it's not good enough to say: "Well, your work is inherently dangerous, and therefore you will never be able to refuse unsafe work or what you deem to be an unsafe circumstance."

The example I gave last week from my own personal experience wasn't technically logging, although that was what I was doing at the time; rather, it was building a right-of-way. The faller whose job it was to knock down all those trees and so forth along the right-of-way came across a gigantic cedar snag filled with branches sticking out -- what we in the trade called widowmakers. The worker, a very seasoned and experienced faller, decided on the basis of his own judgment and experience that that snag had his number. He didn't want to fall it. I, a young university student, was a powderman at the time, and he asked me if we could blow that snag. Happily, we did so.

Now, the point there is to simply say that if you're a faller working on a right-of-way or any bush -- especially in those days, when we used to fall snags as a matter of course, whereas today we tend to leave them standing for environmental purposes -- you can argue the case that yes, indeed, that kind of danger is inherent in the work itself. However, the point I'm making is that in this instance there's an extra dimension of danger. Logically, reasonably, we ought to say to a worker: "You have the right to refuse." Our concern, though, is that if we put in this condition about the risk being inherent in the work, that will perhaps be a higher standard of proof and will then make the workers more vulnerable. That's one example -- the one I used last week.

Another example would be a health care worker or a social worker. In the climate that we live in today, as we know, social workers are sometimes subject to circumstances and

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My point is that even in something like social work, where we wouldn't think of a risk being inherent, I would submit that today that risk probably is inherent to a depressing degree -- just as it is for, say, a parole officer. The same point obtains: namely, that what we do by leaving in this wording -- saying that if the danger is inherent in the work you don't have the right to refuse -- is impose a higher standard on the worker. We give the worker a much more potentially perilous and dangerous kind of work.

I think that there are many occupations which contain an inherent danger. Effectively, these workers -- if we left in the clause that I'm suggesting that we delete -- would not have the right to refuse in extraordinarily dangerous situations, as long as the language as originally written remains and obtains. That's why the amendment, Mr. Chairman. I want to add, though, that we have retained -- and again, I share with my colleagues opposite, especially the member for Vancouver-Quilchena and the member for Chilliwack, who also raised this issue last week. . . . Beyond making other changes. . . .

After considerable reflection and thought, I have decided to retain the current section 141(3)(a), which states that a worker may not refuse if "the refusal would directly endanger the health or safety of another person." We've left that in because we believe that this provision is an important one. We do not want to do anything that would put another person's life, health or safety at risk because of a worker's refusal. It's also important, apropos of this amendment, to point out that the Workers Compensation Board's current regulations do not place any limitation on the refusal of unsafe work. There is no limitation. We are not, therefore, going to depart radically from the existing system. As well, I should point out that occupational health and safety legislation in four other jurisdictions in this country -- namely, Saskatchewan, Manitoba, New Brunswick and Newfoundland -- contains the right to refuse unsafe work, without any limitations attached.

In closing, then, speaking to this amendment, I should also state that we did consider the suggestion made by the member for Chilliwack with respect to allowing for a contracting-out of the right to refuse through an agreement signed at the time of employment. On reflection and with some advice, I have to say that while I indeed appreciate the spirit and intent of that suggestion, I have real concerns that this approach would in fact leave the parties involved wide open to abusive and coercive action.

Therefore it seems to me that we ought not to enshrine that principle in the legislation. That's the reason for my amendment. Of course, I'm happy to answer questions about that amendment.

[2:45]

I think that what the minister has proposed in his amendment does not address the fundamental problem in this section. In fact, I'm not even sure that it doesn't make it worse than it was before, under the previous wording. When we're talking about the right of, say, a firefighter to refuse to go into a dangerous situation. . . . I think that's the intent behind the minister's amendment: to remove this subsection. It's to say that just because there are inherent risks in the work that is being performed means that, under the old wording, the worker would not have any rights to refuse unsafe work. By taking that section out, I think it still leaves lots of flaws in this particular bill.

One of the things I did over the weekend was review clauses from other legislation across Canada. The minister made reference to that just now. He referred to several provinces that gave the right to refuse unsafe work, without any limitations, and I think he included Saskatchewan in that. I don't think that's the case. Certainly in some of the other provinces that he indicated, that is the case: there are no restrictions.

I'd like to suggest that the Saskatchewan legislation is something that we should model this section after, because it is fairly well worded and may address the point that this section is trying to address but in language that is a bit clearer. If I can just quote from the Saskatchewan legislation. . . . This is section 23: "A worker may refuse to perform any particular act or series of acts at a place of employment where the worker has reasonable grounds to believe that the act or series of acts is unusually dangerous to the worker's health or safety or the health or safety of any other person at the place of employment. . . ."

I think that what's important in here is the word "unusual," as in "unusually dangerous." In other words, I think it captures exactly what we're trying to capture in this particular section. To say that a firefighter can refuse to go into a burning building. . . . That may or may not be unreasonable, because you wind up with a building that's on fire, and firefighters, because of the nature of their work, take certain risks. That is a normal part of the job description. What the minister is doing, by removing that section. . . . I don't think it addresses the fundamental issue. By removing that section, now we have the ability of a worker to refuse any unsafe situation, whether or not it is part of the description of that job that the worker has applied for and been hired for.

I would like to make a suggestion to the minister which I think may address some of this. I believe that modelling this after the Saskatchewan legislation, for example, is something that we could do that would be much clearer than tinkering with words here and there in section 141. Given that section 141 is what's before us today, perhaps the only options we have today are to either stand this down so that it can be looked at more carefully or try to do some tinkering to improve it marginally -- although I do believe it needs a fundamental rewrite.

The tinkering that may be possible for the minister to consider is, when we're talking about "work is unsafe. . . ." Just to repeat section 141(1): "Subject to this section, a worker may refuse to carry out work if the worker has reasonable grounds for believing that the work is unsafe. . . ." To amend that to say, ". . .for believing that the work is unusually dan-

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I wonder if the minister would consider an amendment to the effect of line 2 saying ". . .work is unusually dangerous" -- and then in subsection (2), where it says: ". . .for the purpose of this Division, work is unsafe if. . . " -- and then it defines it. . . . If we change that to say, ". . .for the purpose of this Division, work is unusually dangerous if. . . " I think that may go some way toward solving some of the problems with this section. I'm wondering if the minister might entertain that to go in concert with the amendment he is proposing. I think that may be an improvement, and I ask for his comments on that.

Hon. D. Lovick: I thank the member opposite for his comments. I disagree. We have looked at the Saskatchewan model and the use of the adverb "unusually," and in our opinion, it does not improve. . . . Indeed, I think it makes it less clear. You will note, by the way, that we are indeed well aware of the Saskatchewan model, because if you look at the last clause in their section 23, and (4)(a) and (b) in ours, you'll discover the wording is almost a duplicate. Certainly we've had occasion to refer to the Saskatchewan model.

I think the point is that when you look at our section, what you see are those enabling clauses that set up the specificity of our language and our rules that I, frankly, think are preferable. We make an effort, if you like, to define what unsafe work is: ". . .work activities, or the conditions of work, or the conditions that would result if the work were done are such that there. . .would be a significant risk that the worker or another person might be killed, seriously injured or suffer serious illness." Now, it seems to me that all of those adjectives that appear in there effectively do as good a job and a clearer and more definitive job than does their use of "unusually." I think if you put our language together and take out that restriction, which is the purpose of this amendment, then you have, frankly, the best of both worlds. I think that's what our amendment does, and that's why it's a good amendment and is indeed absolutely legitimate.

C. Hansen: What I don't think this amendment or the section as a whole does is capture the recommendation on page 56 of the royal commission's interim report where it says: "Government should also consider placing limits on or describing situations when a worker may not refuse a task. Ontario's legislation, for example, does not permit police officers, firefighters, correctional employees or certain health care workers to refuse hazardous work assignments if. . . ." And then the first bullet is: ". . .those risks are inherent to their work or a normal condition of their employment." I think that's the key sentence: ". . .or a normal condition of their employment." The second bullet is: ". . .the worker's refusal might directly endanger the life, health or safety of another person" -- which remains in there. I do want to speak to that section after we have dealt with the amendment.

I would like to ask the minister: how do we deal with a situation where risks are a normal condition of employment? On the one hand, what you had here before under sub (b) was far too loose; it was placing those in hazardous industries at far too much risk. Now, by totally removing it, we've gone in the other direction. I think what is really required is that we do as the royal commission recommended, and that is to state that people cannot refuse a task where it is a normal condition of their employment. I'm wondering if the minister can tell us how we capture that particular recommendation of the royal commission, given the amendment that he's putting forward.

Hon. D. Lovick: The short answer to the question is one that I have invoked on numerous occasions in this debate so far, in the last week or so, and that is common sense. I truly believe that is the answer to much of this. To get to the specifics as to why we did not accept the royal commission recommendations, I would suggest that the answer is to be found in Hansard from last week -- in the discussion that we had when I said that I was not comfortable with this provision -- and in the rather lengthy explanation I just gave for the amendment. I think I have explained the reason for the amendment implicitly, then, and why we didn't accept the royal commission recommendation, or at least all of it. I think that answers the question.

C. Hansen: I gather that the wording of this particular section is not really pulled from any other particular model. I'm the first one to say that just because they do something in another province, it doesn't mean that we should do it here. There are some sections that come from different places, but this is language that is largely different from the language that we had in the regulations, which came into effect on April 15. This whole section has largely been reworded, and I'm wondering if the minister can tell us why he feels that going this route, with the wording that is currently in 141, is preferable to putting regulation 3.24, which is currently in place under the regulations, into statute.

Hon. D. Lovick: Two points, if I might. The first is that it should be noted that the reference group -- the business and labour people -- asked us to define what was meant by "unsafe." That's the first point. The second point is that I believe the original language was talking about a duty rather than a right. The great debate, of course, is: which of those is stronger? One of the problems is simply that when you use words like "duty," it seems to -- and I say this carefully, because I wasn't part of the discussion -- confer a legal obligation and therefore opens the door to the possible committing of offences and so forth on a regular basis. In other words, if you say a worker not only has the right but the duty to refuse unsafe work, then you are effectively saying to that person: "You had better live up to your duty, or you may end up in a court of law." That's a kind of double jeopardy that you're placing that individual in. That's the explanation to answer the question.

C. Hansen: I have certainly read the royal commission's discussion on duty versus right. I've looked at other jurisdictions. I agree with the minister's initiative in that area, but I'm thinking more generally about where, as best as I can tell from talking to practitioners in this field, the wording of the regulation has largely been successful. It's a vehicle that has been respected by most parties -- although I think there have been cases of "poisoned worksites," as we talked about before, that have used the right to refuse unsafe work as a tool for other objectives; but those are few and far between in British Columbia.

The consensus, as I understand it, is that the wording of the regulation has largely been successful, and that to change it from a duty to a right would change the spirit of the section. Overall, if we keep the wording of the regulations intact. . . . It worked well in the past, and there is no reason to assume that it wouldn't work well in the future, if it is simply brought into the statute. I'm wondering if the minister could explain why

[ Page 8191 ]

[3:00]

The second reason is simply that the royal commission, after all, made some recommendations about the existing regulations that served us well for the most part, to be sure, but obviously didn't do everything we wanted -- or else we wouldn't have had those recommendations from the royal commission. The most notable of those in this instance, as I have said, has to do with the fact that they said to us: "Please define unsafe workplace."

I think those two points answer the member's question.

B. Penner: I also have some particular concerns about this amendment, as proposed by the minister. Specifically, I'd just like to ask if the minister is aware of any particular examples that this amendment or this legislation is supposed to cure. Do you know of any specific problems that have arisen in the last number of years that you are seeking to correct with this legislation?

[W. Hartley in the chair.]

Hon. D. Lovick: Certainly in generic and general terms, the field I just referred to, health care. . . . I'm not sure any longer if they're called practical nurses, LPNs or nurses -- whoever is on a floor. They, for example, are being told that they must lift that patient single-handedly, despite the fact that the patient might weigh three times what the practitioner does. That's why we have this huge incidence of muscular skeletal strain -- is that the term? -- and repetitive strain injury -- those kinds of things. There is a huge incidence of that, at a huge cost to the system. Those are the kinds of conditions -- generically, at least -- that we're trying to address here.

B. Penner: I think we can all agree that the example the minister gave is an improper requirement to place on a worker who is not physically capable of lifting a person of that weight. What I'm concerned about, though, are those types of positions that, by their nature, are inherently risky jobs. The legislation that is before us today doesn't recognize that. I don't think it has the flexibility that's required to fit the kinds of situations that arise on a daily or weekly basis in British Columbia. The interim report from the royal commission working on the Workers Compensation Board suggested that more flexibility was needed, and it specifically recommended that an exception be made for police officers, firefighters, correctional officers and health care workers in those situations where they are required to perform their duties as a normal condition of their employment.

Last week, the minister will recall, I made some suggestions that perhaps the legislation be worded in such a way as to allow a worker and an employer to define the types of risks that would be acceptable in the normal course of employment. The minister says, after consideration and legal advice, that he has decided not to allow that. But I think that type of approach is what the interim report from the Royal Commission on Workers Compensation was getting at: identifying what the normal conditions of employment are and what the acceptable level of risk is for any particular job. We can think of a situation of a house on fire and a firefighter arriving at the scene and saying: "I'm not going to go and tackle that fire, because it could be risky." Well, he or she is right. . . . There is a risk inherently associated with certain types of jobs.

The way the amendment is worded, by deleting subsection (b) and the provision about the inherent risk in a type of work presented to an employee, means that any worker at any time has the right to refuse any work, except where the health or safety of another person is in danger. But there are some jobs where clearly the employee signs on knowing that it is a risky job, and presumably rates of pay will reflect that. Today we're presented with an amendment that says that even if the employee is hired on that basis and accepts that risk at the date of hiring, at any other time or whenever the occasion arises, the employee can say: "Sorry, not today or not right at this moment. I don't feel safe doing that." I think this creates a situation of uncertainty not just for employers but for the public in British Columbia that depend on our emergency workers to come to our assistance in a time of need and defend not just lives but property as well.

I note with interest that Ontario has an exception allowing workers to refuse work except where it is a risk that's normally associated with that type of employment. I believe the Yukon territory, as well, has legislation that is similar, allowing workers to refuse work where they think it's unsafe, unless it's an inherent risk associated with that type of employment. I'd just ask the minister why he feels that this type of an approach would not work in British Columbia and why he does not consider that appropriate here in our legislation.

Hon. D. Lovick: Mr. Chairman, I believe I have answered that question three or four times now. But let me, if I may, just make two points. Number one, under the current law of the land, the worker has the duty to refuse. That's the current law. So it isn't the case that we're suddenly grafting on or demanding of workers a whole bunch more in their obligations; we're not. Second, I would refer the member to what the whole clause says. It's impossible to understand this amendment unless we put it in the context of the enabling clauses -- namely, that "a worker may refuse to carry out work if the worker has reasonable grounds for believing that the work is unsafe." And then it defines those reasonable grounds and says that the work is unsafe if there are reasonable grounds to believe so and "if the work activities, or the conditions of work, or the conditions that would result if the work were done are such that there. . .would be a significant risk that the worker or another person might be killed, seriously injured or suffer serious illness."

That's pretty clear. I don't think it's safe or fair to say that any police officer or any firefighter or any logger would suddenly say: "Oh, I am now" -- because it doesn't specifically exclude the clause we're talking about deleting here -- "in a position where I no longer do the job of a logger or a firefighter or a police officer." The reality is that no logger can set up and say: "Gosh, my chainsaw is sharp, and I could get in trouble once I crank it up and make it go, and therefore I won't work at that job." Nobody is suggesting anything like that.

[ Page 8192 ]

I don't think there is a problem. I don't think it's an overlay. It's simply a statement that we are going to do what we can to grow that culture of prevention and to encourage workers not to do things that, in their best judgment, they know are dangerous to their health and their safety.

B. Penner: I'm not going to belabour this point. I anticipate that this will be my last remark, subject to what the minister says. I agree with the minister that, by and large, people do exercise common sense when they're working on a day-to-day basis.

I don't see why, though, the legislation couldn't reflect that common sense by amending, for example, section 15, subsection 141(2) -- where it enumerates a number of conditions that amount to an unsafe working environment -- to state: ". . .where there is a significant risk that the worker or another person might be killed, seriously injured or suffer serious illness that exceeds the normal or anticipated risks for work of that nature."

At any time, you could argue that a firefighter, for example, fighting forest fires in the summer has a significant risk that they could end up losing their life. I recall working as a park ranger. That summer, I attempted for the first time to purchase life insurance. The life insurance company said no; park ranger was considered too hazardous an occupation to qualify for life insurance. So I suppose, based on that type of evidence, you could say that it's the type of job where a person could reasonably anticipate that there is a risk of losing their life. Does that mean that when my boss called me at 7:30 in the morning to show up for work, I could say: "No, today I feel it's just too risky for me to show up for work"? Now, obviously, common sense would say I wouldn't do that, and I didn't.

However, why not simply add a couple of words to the subsection to allow the legislation to reflect that common sense and give all of us, I think, a bit more certainty about how this legislation will work in practice?

Amendment approved.

On section 15, section 141 as amended.

C. Hansen: When we had this debate on Wednesday, and the minister expressed a willingness to reconsider aspects of this section, some of the feedback that I got over the weekend was that it was in need of some change, but not the area that the minister moved his amendment on. The area that we actually zeroed in on and that may warrant a second look was not in fact sub-subsection 141(3)(b) but sub-subsection 141(3)(a), which the minister has not touched in his amendment and which now reads, as amended: ". . .the right to refuse under subsection (1) does not apply if (a) the refusal would directly endanger the health or safety of another person. . . ."

Now, as I understand it, in most industries where there is risk involved, there is a clearly defined understanding as to who has the responsibility of determining whether there is risk or not. The one example that comes to mind immediately -- but I know is not covered under this legislation, because it's exempted -- is mine rescue. But I assume it also applies in the case of firefighters. I'm sure it would apply in the case of police officers. It would probably apply in the case of crane operators, for example. There are probably dozens and dozens of professions that could find themselves in situations where there is an accident, and a threat to the safety of an individual. Yet the rescuers themselves have to make a very careful judgment call as to whether or not going into that situation is going to put them at risk as well. So you wind up in the case of a police officer who has a colleague in difficulty, and who has to make that judgment call as to whether he should rush in there to assist his colleague or whether rushing in there would in fact result in two fatalities instead of one fatality.

So the clause that, it was suggested to me, needed a second look was in fact sub-subsection 141(3)(a) -- whether or not we have to respect the understandings that are there with certain professions when it comes to making the decision whether or not they rush into a situation where another colleague is at risk or hold back until the situation can be stabilized, even though that in itself could in fact cause further harm to the individual who was in that situation. I am just wondering if the minister could tell the House whether or not he's looked at that section from that perspective.

Hon. D. Lovick: Yes, we did so. Indeed I referred to that in my comments about the amendment -- why we looked at that and why we rejected it.

C. Hansen: I'm not sure that the minister addressed that in. . . . Perhaps I missed it. But I don't recall him explaining how that worker in that situation is protected from a requirement to rush in and rescue a colleague, when the rescue itself inherently presents an unreasonable danger.

[3:15]

But again I want to emphasize the principle behind all of this -- namely, that whatever the nature of one's work, there ought to be a residual power left in the hands of the worker to say: "I will not die for you. I will not go and lose my arms and legs for the nature of the work." We should not ask that of anybody. That's the purpose of this section, in effect.

C. Hansen: I agree with the minister in that sentiment. But that's not what this legislation says, because it quite clearly says that the right to refuse unsafe work does not apply in the case where "the refusal would directly endanger

[ Page 8193 ]

But what's in this legislation is the exact opposite from what the minister just said was common sense. Common sense has not been incorporated here. Common sense would say that the workers can make those kinds of judgments as to what is or is not an unreasonable situation to put themselves into. But what this legislation says is that they don't have the right to refuse unsafe work if "the refusal would directly endanger the health or safety of another person." You know, the minister could talk about common sense, but interpretation of the law comes down to the words, not what the minister defines as common sense.

Hon. D. Lovick: I'm sorry if I've been obtuse here, but is the member actually suggesting to me that he thinks we don't need subsection (3)(a)? Is he suggesting that we might be better off if we simply remove that provision as well?

C. Hansen: What I'm suggesting is that the wording in this section does not achieve what I think the section was designed to achieve. I think that became obvious when we started looking at this on Wednesday. Perhaps an alternative wording would achieve the objectives. Certainly I'm not suggesting that we simply delete it; I'm just suggesting that we may need a whole new approach to this section which is simply not here today.

I'm not sure whether the minister is prepared at this point to take a longer look at that. I would certainly be prepared to stand this section down and come back to it after we've finished the entire legislation, in hopes that we can come up with language that would reword this. I have great respect for the legislative draftspersons that we have working for the provincial government. I occasionally can make the odd suggestion as to how we can amend a particular section. I don't pretend to have the expertise necessary to reword this section, but I think that's what is required: taking a different approach to tighten up this language so that it does achieve what it was set out to achieve. I would certainly be prepared to support standing this down so that that longer look could be taken at this section, with some proper consultation with different industry groups that may be affected by it.

Hon. U. Dosanjh: Hon. Chair, I ask leave to make an introduction.

Leave granted.

Hon. U. Dosanjh: I have the pleasure of introducing 18 grade 6 students from Khalsa elementary school in my constituency. They are in the gallery, accompanied by the principal, Mr. Amar Singh Dhaliwal, and teacher Mr. Juthe. Would the House please make them welcome. They're wonderful kids.

Hon. D. Lovick: Mr. Chairman, I do not share the member's view that this section is flawed. Indeed, this kind of language, this kind of provision, can be found in a number of comparable statutes in other jurisdictions, and it seems to me that the bill is perfectly workable as is. Therefore I would not advocate standing it down at this point; I think we can proceed.

C. Hansen: Let me zero in on another section, where it talks about "reasonable grounds." Does the minister feel today that there is enough written material. . . ? Is there an understanding on the part of the employer-employee community as to what constitutes reasonable grounds? Or is this something that we're going to see some direction coming out of the WCB on? Or is "reasonable grounds" going to be something that evolves over a number of years so that there is a body of findings that eventually becomes a definition as to what is or is not reasonable grounds?

Hon. D. Lovick: The short answer is that if the employer and the worker can't come to terms on what constitutes an unsafe workplace, then at that point the board has jurisdiction to make a decision on what does or does not constitute reasonable grounds.

C. Hansen: But that's after the fact. That's the point at which work has been refused and an investigating officer has to come in to determine whether or not it was unreasonable. What I'm asking is whether or not there is any material out there today that would give direction as to what are or are not reasonable grounds. Or do we just have to wait for the complaints to be filed and for investigators to go in before there can be any kinds of guidelines?

My other question in the same vein is: what kinds of guidelines are there for the investigating officers? I would expect, with an investigating officer from the WCB going in to look at a situation as to whether or not the refusal was justified, that there would be enormous pressure on that officer to find in favour of the worker -- and that the officer would be under certain pressure, given all of the other responsibilities that an officer has. . . . Because of the consequences of an unreasonable refusal, the inclination would be to find in favour of a justified refusal. My question to the minister is: what guidelines are there, first of all, for workers and employers to determine whether or not there are reasonable grounds? Secondly, what guidelines are there for the investigating officers to make those kinds of determinations?

Hon. D. Lovick: Two points. First, on the specifics, the answer would be training, knowledge, experience, health and safety committee activities, and whatever literature might be around -- in a word, common sense.

The second point is to say that I reject categorically and peremptorily the notion that an inspector, somebody looking into a case such as this, would be predisposed to find in favour of the worker. I think that is simply not the case.

C. Hansen: In a case where there is a lack of guidelines for the investigating officers to work from, if you look at the penalty ramifications, my sense is that an officer, in the absence of guidelines, would be called upon to make these very subjective determinations. The minister may want to comment on that point.

Let me also throw this out. He also mentioned that the definition of "reasonable grounds" is something that would come through the training and experience of the health and safety committees. Does the minister envision that the WCB will be offering specific courses to health and safety committee members to determine what are or are not reasonable grounds for the refusal of unsafe work?

Hon. D. Lovick: First, I would point out that the member seems to be finding these potential problems in areas where,

[ Page 8194 ]

The WCB has had huge experience for a very long time in dealing with these matters, so it isn't the case that we're reinventing the proverbial wheel; far from it.

Third, I just make the point, in anecdotal evidence, that if the member or I were working in a pulp mill, and you're a welder or a pipefitter or a millwright or whatever it may be, and you went down under the shaft and suddenly smelled something awful, like gas or chlorine gas or something, then what you're going to do is get out of there PDQ. You're going to say: "Wait a minute. You'd better ventilate that area if you want me in there." I would suggest that even if it is proven later that the gas is not noxious, is not dangerous, that would constitute reasonable grounds. Therefore I invite once again the example of common sense, which I believe will in fact be the defining feature of much of what actually happens when this legislation is in place, just as it is now in place, when the regulations are active and being used.

C. Hansen: Does the minister envision that this section, reasonable grounds for refusing unsafe work, would become the subject of a training program offered by or with the approval of the WCB?

Hon. D. Lovick: I have no idea, Mr. Chairman.

Section 15, section 141 as amended approved.

Section 15, sections 142 to 144 inclusive approved.

On section 15, section 145.

C. Hansen: I want to ask the minister about a situation. Here we're talking about investigations and determinations that would be done by WCB officers. I would like to ask the minister specifically about a worksite where there is a collective agreement in place. Under most collective agreements, disciplinary action could in fact become a subject that would be grieved under a collective agreement. I would like to ask the minister what authority the report of the investigating officer would carry when it comes to a grievance that might be filed as a result of disciplinary action taken for refusing unsafe work on unreasonable grounds.

Hon. D. Lovick: I'm sorry, Mr. Chairman, I was conferring with staff because I think I missed the point of the question. If I understand correctly, the member's asking whether a union could come back and effectively grieve the decision of the Workers Compensation Board. I think the answer to that is no, the board's decision stands. What the union could conceivably grieve would be the disciplinary action taken -- namely, whether it was too severe for the incident or something like that. I hope I got the member's question right.

[3:30]

Hon. D. Lovick: Just to clarify for the record, do I understand that is the first "A" of the Q's and A's that were given to the member? If so, I can simply read that into the record. That might be the easiest way.

C. Hansen: Yes.

Hon. D. Lovick: All right. In that case, then, let me give the official word from on high. If the worker exercises his or her right to refuse unsafe work and if it is later determined through board investigation that there were not reasonably grounds for the refusal, the employer is entitled to take disciplinary action as per section 145. Legal services to government advise that disciplinary action may include recovery of the funds paid to the employee during the time of the refusal, since the employee is not technically working and therefore is not earning wages. These moneys paid to the employee do not constitute wages. Rather, they are an overpayment and, as such, may be recouped by the employer. This repayment should be done reasonably and the employee should be advised of the terms and conditions of repayment.

D. Symons: If I might relate a situation similar to what's covered theoretically in section 145(5), maybe you can explain what would happen according to this amendment and the act. . . . It involves the fast ferry program. Workers for a number of months -- going back five or six months, I would say -- have been complaining of ozone levels and the effect upon their health of ozone. The WCB attended to this and listened to the workers' complaints and assured everybody that everything was fine, that there was no problem there. I spoke to the WCB worker personally on this matter, and they were ignoring facts in determining that it wasn't a problem. I gather now that because workers are off with permanently diminished lung capacities, they're discovering that the workers may have been right all of that time. According to subsection (5), the WCB would determine that the workers did not have reasonable grounds for believing the work was unsafe -- it was determined months ago that this was their position. It now turns out that maybe the WCB was wrong in that situation. When workers come under the WCB, they give up their right to sue, I believe. What are the workers' rights in that circumstance?

Hon. D. Lovick: Mr. Chairman, with all due deference -- and I don't mean for a moment to belittle the question, because it is an important one -- this doesn't really have to do with occupational health and safety legislation. Rather, it would seem to have everything to do with the fact that workers have a particular concern or grievance with the board, and therefore avenues are available. I don't think I can contribute anything to that particular issue by talking about the legislation that we're talking about passing.

C. Hansen: I want to talk for a moment about a more general issue as it pertains to this section, and that's the whole

[ Page 8195 ]

Hon. D. Lovick: First of all, the royal commission said that this issue should not go to the LRB, that it belonged to the Workers Compensation Board. Secondly, the Labour Relations Board doesn't have any qualification whatsoever to determine whether something is safe or not safe. And finally, the LRB -- remember, by definition it deals with unionized workforces -- would leave out huge numbers of workers who might want to avail themselves of the provisions of occupational health and safety legislation.

Section 15, section 145 approved.

On section 15, section 146.

C. Hansen: I want the minister to explain what is meant by section 1(a): ". . .the employer may temporarily reassign the worker to reasonable alternative work." Certainly that is quite open-ended, but in different worksites it could have some very different meanings. For example, on a construction site where an electrician refuses to do something that he or she deems to be unsafe, is it reasonable for the contractor, the employer, to assign that employee to do some other work while there's a determination made or while the hazardous situation is being corrected? Could the employer ask the electrical crew, for example, to at least do some cleanup duty for the afternoon or something along those lines? Could the minister elaborate on this?

Hon. D. Lovick: Yes, subject again to common sense, that great category I've referred to many times. Second, as long as there isn't a jurisdictional problem built in. For example, if it's a construction site with unionized labour and a unionized contractor, you can't tell an electrician to suddenly become a carpenter for two hours. That's the second condition. And the other and most important condition is, essentially: as long as the alternative is not punitive in nature. In other words, if you're dealing with a highly skilled electrician who is in this circumstance, and you say to that individual, "While this is being adjudicated, your alternative work for the next week is to go around cleaning toilets in every job site within a 20-mile radius," I think that would probably be perceived to be punitive by most people's calculus. So that's what we're talking about essentially: a reasonable alternative -- again, defined, above all, by common sense.

C. Hansen: Is the minister saying that the jurisdictional assignment plan that is used by some of the building trades unions -- which is not recognized in any statute that has ever been passed by this chamber -- would take precedence over this clause that is in the legislation that's before us?

Hon. D. Lovick: The principle here is simply the collective agreement. If there is a collective agreement in place with the jurisdictional assignment plan in place, then you couldn't use this statute to effectively violate the collective agreement. That's the answer.

C. Hansen: Certainly there will be situations where there is lots of work to be done in a particular workplace, but there is none that would fit into the very narrow job descriptions of the individuals who are refusing work. In effect, is the minister saying that it has to be within that worker's normal duties -- which seems not to be the intent? The intent seems to be that if there's alternative work, the employer can in fact assign the worker to that alternative work. Again, if we wind up with very narrow job descriptions which take place not just in construction -- the example I used earlier -- but also in health care, for example, where you wind up with workers who, unless they're performing their specific function, are not able to perform any other work on that job site. I'm wondering if the minister could explain what would happen in that situation, where there is no alternative work that fits into that very narrow definition.

Hon. D. Lovick: I'm going to repeat something that I said earlier -- namely, that I think the member is finding potential problems in areas where we have not had problems in the past. One would dearly hope that a problem such as the one he introduces -- the hypothesis he introduces -- could be solved within a day. As well, I don't think there are too many worksites where one couldn't find something for that individual to do without worry or fear that you would be getting into trouble with jurisdictional disputes.

Section 15, section 146 approved.

On section 15, section 147.

C. Hansen: I want to pull out a clause from 147 and relate it to words in 148 as well. What we have in 147 is a provision that says that the worker who has exercised the right to refuse unsafe work must basically continue to be paid his regular wages until the circumstances of section 141 are met -- in other words, until such time as the unsafe situation is resolved.

Looking down the page a little bit to where it talks about other workers who are affected by that action, it says there that they must continue to be paid "until work resumes, or until the end of their scheduled work period." It appears to me, in reading those two sections, that the actual worker who has refused the unsafe work has a much more powerful clause in terms of being paid his regular pay than those other workers who are affected by it. Clearly, you wind up with a situation where the unsafe situation could take much longer to resolve than purely a resumption of work. . . . I'd like the minister to explain why, in these two sections, we have a very different approach, depending on whether it's the complainant or another worker that has been affected by that complaint being filed.

Hon. D. Lovick: I'm not sure I know how to answer this. Section 147 deals with the effect of workers exercising their rights and insisting on investigation. It says: "If a worker who is exercising the right to refuse unsafe work has not been reassigned. . .the employer must, until the circumstances" of the unsafe conditions "are met, pay the worker the same wages as would have been payable had the worker continued to work." That's all we're dealing with right now. I can't quite make the connection in terms of another section that is coming

[ Page 8196 ]

C. Hansen: Perhaps I wasn't clear enough. The point that I'm making is that under 147, we have the treatment of the complainant being worded one way. We've got a situation where the complainant is basically entitled to the same wages as he would have received otherwise, and he's entitled to receive those wages until the unsafe situation has been resolved. The exact wording is: "The employer must, until the circumstances of section 141(4)(a) or (b) are met, pay the worker the same wages as would have been payable had the worker continued to work." Under 148 the language is quite different, and 148 affects workers who didn't file the complaint but who are denied the ability to work because of the fact that the complaint was filed. There the wording is different, and it says: "If workers are unable to proceed with their assigned work because of another worker's refusal under section 141, unless otherwise provided in a collective agreement, the workers are deemed, for the purpose of calculating wages, to be at work until work resumes or until the end of their scheduled work period, whichever period is shorter." What it appears to me, in reading these two sections, is that the complainant has much stronger language to ensure a continuation of his or her wages than do the other workers who are affected by that action.

[3:45]

A couple of points. First of all, when it's the individual worker, it is the individual who is directly affected. That's the individual whose health and safety are most at risk. Second, the purpose of 147. . . . The wording is: "If a worker who is exercising the right to refuse unsafe work has not been reassigned. . . ." The intention there is to ensure that that individual is not penalized, if you like, for blowing the whistle, for saying that this is an unsafe workplace. Third, it is obviously easier -- and here is the answer to the question about the individual versus the other workers on the worksite that we have referred to in 148 -- to reassign one person than it is to reassign a whole crew. Therefore we think it's probably being more responsive, if you will, to the reality of the workplace and to the employer's circumstances.

C. Hansen: I want to refer to sub (3), where they're talking about the time spent by a worker to accompany the employer or supervisor while this is being investigated. Here again we have an obligation that has been placed on the employer to "pay the worker for that time." The implication is that there is nothing to restrict it as to regular time or overtime. I know that there is a concern that this may, in fact, force employers to pay overtime in these situations. I'm wondering if that is what is contemplated by this legislation.

Hon. D. Lovick: A couple of points. First, I've answered this question, I believe, in other contexts and other circumstances and said that management still has the right to manage, and the Employment Standards Act still applies. Clearly no employer who has any option is going to suggest that we deal with these matters in overtime, when they would have to pay more than they would otherwise. Finally, I would just refer the member opposite to a section that we already passed a few minutes ago that addresses this a little bit -- namely, under section 142(2): "Until any investigation under this Part is completed, the worker must remain available at the workplace during his or her normal working hours." I think that addresses or at least anticipates that problem.

Section 15, section 147 approved.

On section 15, section 148.

C. Hansen: Under section 148(3), there is language used in the context of workers affected by a refusal that is different than what is used in section 146, which is the worker who actually files the complaint or refuses to do unsafe work. In section 146, we have a clause that says that the worker must accept the reassignment until he or she returns to work in accordance with section 141(4). Under section 148(3), it says, "An employer may assign reasonable alternative work to workers to whom subsection (1) or (2) applies," but it doesn't include the same provision as we have in section 146, which is the obligation to accept reassignment. I'm wondering if the minister could explain why we have it in one section but not in the other.

Hon. D. Lovick: The short answer is that if they don't accept reassignment, then they don't get paid.

C. Hansen: Sorry, but it seems to me, I guess, that either it begs the question as to why it was important to write it in the first section, and if it was important in that section, then why. . . ? It's notable by its absence, I guess is the way to put it. Could the minister comment?

Hon. D. Lovick: The point I made a few minutes ago was that the purpose of section 146, or at least that subsection of it, was simply to ensure that layoffs weren't used in some kind of punitive way -- that one wasn't punished, in effect, for a refusal to perform unsafe work. That was the purpose of that other section.

Section 15, sections 148 and 149 approved.

On section 15, section 150.

C. Hansen: This is a new division: division 6. We're making some progress here.

Under section 150, this is. . . . I guess this whole division is what is commonly called the whistle-blower section. In section 150(1), it says: "For the purposes of this Division, 'discriminatory action' includes any act or omission by an employer or union, or a person acting on behalf of an employer or union, that adversely affects a worker with respect to any term or condition of employment, or of membership in a union." I'm wondering if the minister could explain why the last six words are in that particular clause -- that is, the words "or of membership in a union." Why is it considered important to have that in this particular clause?

Hon. D. Lovick: If somebody is working in a closed shop and one's union membership is revoked, that person would effectively be prevented from working.

C. Hansen: A few minutes ago I raised the area where the responsibilities of the WCB and the LRB may in fact cross

[ Page 8197 ]

Hon. D. Lovick: I have a couple of points. First of all, the intention of the section is to prevent this kind of thing from happening. So they can indeed fight the matter out at the board of the WCB, and it doesn't become a jurisdictional battle or something like that. Second, this entire section is indeed entirely consistent with the recommendations of the royal commission. Nobody's trying to sneak in an LRB adjustment here or something like that.

C. Hansen: I think what is important is that we define where responsibilities lie. Where do the responsibilities of the WCB end and those of the Labour Relations Board start? Certainly, when you start getting into clauses like this, you're building some pretty big grey areas in here. My concern is that the more the WCB starts to intrude upon an area of jurisdiction which is rightfully under the LRB, then we're going to wind up with problems down the road, especially when you get two bodies that have such extreme powers. There are very big powers conferred on the LRB and on the WCB. If they start crossing over in terms of jurisdictions, then we could have a major problem on our hands. So what I'm trying to determine in terms of a statement of principle is where that line is drawn between the responsibilities of the two boards.

Hon. D. Lovick: The discriminatory action contemplated here has entirely and only to do with occupational health and safety. The fact that it refers to some persons "on behalf of an employer or union" or membership in a union simply responds to the reality that certain workplaces are union shops -- okay? They are closed shops; there's nobody else in there. What one wants to ensure is simply that nobody is punished, if you like, for his or her activity regarding an unsafe workplace and for reporting thereon, in a way that will affect either their employment -- as the employer is empowered to do so -- or their ability to work, as affected by their membership in a union.

The LRB has nothing to say on this subject; the Labour Code has nothing to say on this subject. This is about discriminatory action arising from occupational health and safety matters. It seems to me that the line is absolutely clear. There isn't any mixing of jurisdictions.

C. Hansen: I want to zero in on one word that's in here, and that's the word "omission," where it says that discriminatory action can include "any act or omission by an employer or union. . . ." I am concerned in the context of having that in here when you also. . . . If you go to section 152, we have this very bizarre clause that basically says the employer or the union is guilty until proven innocent. So on one hand that in itself is a very onerous clause -- which we'll get to in a few minutes, obviously, when we get to section 152.

But if you come back to section 150 and start looking at not just an action by an employer or union but an omission of an action by an employer or union that could give rise to a complaint under this section, for which the onus is not on the complainant to prove the case. . . . The onus is on the employer or the union, depending on who the complaint is being levelled against, to prove that they're innocent. When you start including omissions in this clause, is that not carrying this too far? When it comes to the ability to file complaints based on the lack of an action or on an omission, that then puts the onus on the employer to prove themselves innocent after the fact.

Hon. D. Lovick: The short answer would be no, I disagree. But I'll give the member a longer answer. I don't know whether the member opposite was trained by the Jesuits or anything like that -- you know, their zeal for detail, zeroing in and asking the precise questions. The only reason I make that point is simply because I think. . . .

Interjection.

Hon. D. Lovick: Listen, members. If you are perplexed, let me explain my allusion. The reference is essentially to the fact that it was the Jesuits -- remember? -- who taught us about sins of omission as well as of commission. So I think we're on pretty safe ground -- okay?

I'll give you an example of a sin of omission as it happens here: failure to confirm an appointment after six months on probation. In other words, an individual was doing the job reasonably well but got into a circumstance of reporting an unsafe work environment. It wasn't a case of something that the employer did or didn't commit. Rather, they didn't carry out what was anticipated would happen -- in other words, not commission but omission. There's an example of what is intended by "omission" in this particular section of the bill.

C. Hansen: I won't pretend to have anywhere near the scholarly background that the minister has, so I won't try to take him on when it comes to the Jesuit principles.

Here my concern is that there is an opportunity for complaints to be filed based on discriminatory actions. Obviously the discriminatory actions can include a whole list of things that are set out in this particular division. If you've got an action committed by an employer, it is bad enough that they are guilty until proven innocent -- I think that's an unreasonable clause, but we'll get to that one -- but it's especially unreasonable when you read it in the context of not just an action that has been taken by an employer or a trade union, but in fact an omission. That's where I think this particular section deserves some reconsideration. I think that extends it too far. You can talk about the Jesuit principles, but I think it still comes back to the fact that this is a vehicle that is really putting an enormous cost burden on the employer -- or on the union, if the complaint is against the union.

I'm wondering if the minister knows any history of the kinds of complaints or the volume of complaints that could come forward under this kind of language. Perhaps the minister can explain where this language comes from. If it is from another jurisdiction, is there in fact a history to show the reasonableness of it?

[4:00]

Section 15, sections 150 and 151 approved.

[ Page 8198 ]

C. Hansen: This is the section that I have a great deal of difficulty with. Subsection (3) says: "In dealing with a matter referred to in subsection (1), whether under a collective agreement or by complaint to the board, the burden of proving that there has been no such contravention is on the employer or the union, as applicable." In other words, the complaint is filed against the employer or a complaint is filed against the union, and the burden of proof comes back onto the employer or, as the case may be, the union.

I would like to ask the minister if there is any other similar provision of guilty until proven innocent that he is aware of in terms of any of the other labour legislation that we have in this province.

Hon. D. Lovick: I'm not sure I want to cast this section as "guilty until proven innocent." I think that sounds just a little more draconian and scary than it might otherwise be. I would remind the member opposite that the reverse-onus provision is indeed consistent with the royal commission recommendation, and that was done largely because of the recognition of a power imbalance between workers and employers. That's the reason for this.

C. Hansen: Certainly I can understand why there would be a provision that says that the employer or, in the case of a complaint against a union, the union. . . . I can understand why those organizations have to cooperate, why they have to assist in terms of records or other things that may be necessary. What I don't understand is why the burden of proof is put on the employer rather than allowing the complainant to come forward with information and then perhaps take the approach of giving the complainant the right of assistance or cooperation when it comes to what's necessary to put a complaint forward. But to put the total burden of proof on the employer. . . . It seems to me that this is open to abuse from which the employer really has very little defence, other than to go through the motions and add the costs of trying to prove innocence in this case.

The minister says that to categorize it as "guilty until proven innocent" is too strong, but that's certainly how I read this. The onus is clearly on the employer to prove their innocence.

Hon. D. Lovick: I wonder if the member accepts the reverse of the proposition -- namely, that the worker is guilty until proven innocent. But that's neither here nor there. I think the point to be made -- and we're in danger of losing the point -- is that the context of this is that an employee says: "For carrying out my responsibilities under this legislation and these regulations, I didn't get paid. And so I, the worker, start the process of complaint by saying so." Who except the employer can determine whether in fact the member got paid or did not get paid? The employee can stand up and scream until his or her face turns blue or whatever, but the reality is that the only person physically empowered to deal with the question is the employer. It's no horrible distortion of natural justice; it's simply the reality of a workplace, and the complaint that we're talking about. . . . How do you go about redressing that complaint? That's all.

R. Coleman: I seek leave to make an introduction.

Leave granted.

R. Coleman: Far be it from me to interrupt this invigorating conversation that's going back and forth across the House, but I had the opportunity earlier on the steps of the Legislature to meet with a group of students from Credo Christian High School in my riding and their teacher, Mr. DeJong, and some other teachers and parents. They're in Victoria today to see how government works. They may not see it completely here today, but certainly we can start them along the way to learning a lot about government as they visit the Legislature. I would ask the House to please make them welcome.

C. Hansen: The minister was just talking about a discriminatory action being whether somebody was or wasn't paid. That's an area that could fall under this particular clause which is self-evident, I believe. But if you start looking at other discriminatory actions, for example, as provided for under section 150(2)(d), where it talks about how a discriminatory action includes coercion or intimidation. . . .

I would like the minister to explain this to the House. If an employer is accused of coercion or intimidation, how does he prove that there wasn't coercion or intimidation? You're talking about very subjective determinations that have to be done, yet what we have done under this section is put the burden of proof onto the employer. And I'll read it again: ". . .the burden of proving that there has been no such contravention is on the employer. . . ."

An Hon. Member: Or the union.

C. Hansen: Or the union. We'll talk about it as an accusation made against an employer or against a union. But here, where there is an allegation of coercion or intimidation, the burden of proving that there was not is placed on the employer. I'd like to ask the minister: how is an employer to prove that there was no coercion or intimidation?

Hon. D. Lovick: Well, I quoted the Jesuits not long ago, so let me quote Plato this time -- namely, that "the truth shall set you free." That's the answer: you tell the truth and the problem is solved. That's how you prove your innocence.

C. Hansen: I wish I were getting some better answers from the minister, but obviously we're not going to make any more progress from here. Quoting Plato is not going to. . . .

Interjection.

C. Hansen: Now, I could quote Play-Doh, but not Plato. Certainly the minister's response to some of my questions has left us with no alternative other than to vote against this particular section. Clearly it's not worded in a way that's going to result in the kind of solutions in the workplace that we think are necessary.

Before we vote on this entire section, let me go on to ask some other questions. This is under subsection (2), where we talk about the rights of a worker to file a complaint, and that must be made in writing to the board, in the case of a complaint referred in subsection (1), within a year of the action considered to be discriminatory. I would like to ask the minister: why has he chosen to include such a long duration for a worker to come forward with a complaint under this section?

Hon. D. Lovick: The short answer to the question is simply that the evidence of discrimination may not be that evident in the immediate present. It may take six months or longer before one finds out that there is some alleged discrimination. For example, one didn't get the promotion, one got a

[ Page 8199 ]

C. Hansen: But I think that this makes the burden of subsection (3) even worse. What we've got is an employer who doesn't even know that there is a problem, that hasn't even been advised that there is a complaint pending. So a year later, after. . . . Everybody is still trying to remember: "What was it that took place a year ago? What were the circumstances? What was done?"

Let's go back to subsection 150. The coercion and intimidation that may have taken place. . . . You're asking for recollection of what transpired a year ago, and then on top of that you're putting the burden of proof on the employer. So you've got the complainant who basically can sit on their complaint for 364 days, bring the complaint forward and now the burden is not on the complainant to prove that; the burden is on the employer to prove that somehow the complaint was not justified. What is the comparable protection to be given to the employer or to the union against whom certain accusations are being made? The burden of proof is there, and yet a year can transpire before anything has to come forward.

Hon. D. Lovick: Well, first of all, I think the notion of somebody waiting for 364 days and then saying, "Gotcha! I've got one day left to do it," is highly unlikely. I'm tempted to say preposterous, but I won't because that might be inflammatory. Nobody is going to sit on a complaint. If a complaint is real and significant and sufficient that a worker wishes to take action I'm sure that she or he will do so as soon as the evidence comes before them sufficient to lead them to the conclusion that they ought to take that action.

Further to the matter of coercion or intimidation, which was the example the member opposite used, if I have done anything that will lead somebody else to accuse me of coercion or intimidation -- those are strong things -- I am sure that I will remember the circumstance, either to say, "That is preposterous; that is ludicrous. The circumstance the individual is describing has no resemblance whatsoever to coercion or intimidation," or to say that: "Yes, indeed, that was an extremely unhappy circumstance. Finally, I would point out that I don't imagine behaviours of the kind listed here, like coercion and intimidation, are one-off activities. I think those are probably more likely a pattern of behaviour and conduct.

I said "finally," but there's one other piece that the members opposite may appreciate knowing. Ontario also places the burden of proof on the employer, I gather, so it isn't as if this is unique or that we alone are doing this thing.

[4:15]

Hon. D. Lovick: No, I don't think I would -- simply because I don't think one is necessary. It seems to me that the year is a reasonable amount of time, for the reasons I enunciated not too many moments ago. It's simply that the evidence of some kind of discrimination may not be obvious for at least six months -- up to even a year. A year is, I think. . . . What will we call it? Intuitively we all know that a year is a reasonable amount of time. That is, I think, probably the short answer.

C. Hansen: But the minister says it may not become apparent for a period of time -- I think the example that he used was the lack of a promotion -- and it may not become evident for a year. But then on top of that you've got an employee who has not received a promotion and who after 12 months is going to come forward with a complaint that says: "I did not get a promotion because 11 months ago I complained about something that I thought was an unsafe work practice." In that context, you're saying that the burden of proof is on the employer; it is the employer who has to prove that the worker was not denied a promotion because of a complaint that took place a year ago. That's the way this section reads: the employer's responsibility is to prove -- the burden of proof is on the employer -- that the employee was not not promoted because of a complaint that was made a year ago or an action that was taken a year earlier.

How does an employer go about proving that circumstance?

Hon. D. Lovick: I think the answer is that he or she does so in the way one always does -- namely, you demonstrate that the competition was fair and open for something like a promotion. The other matters, which are more likely to be in evidence here, are much easier to define -- in terms of staying on after a probationary period or something of that sort.

Section 15, section 152 approved on division.

On section 15, section 153.

C. Hansen: It strikes me that this is new territory for the board to move into. In section 15, section 153, we have the response to a complaint that comes forward under a discriminatory action. Section 15, section 153(1) says: "If the board receives a complaint under section 152(2), it must immediately inquire into the matter. . . ." Then the rest of the section basically sets out the way that the board has to go about conducting its investigation. I would like to ask the minister if this is not a significantly new area for the board to be given responsibility for, when it comes to investigations.

Hon. D. Lovick: I thank the member for his question, Mr. Chairman. Yes, it is a new section, and we do indeed recognize that some training may have to be introduced in order to make this section operate as it should.

C. Hansen: Does the minister envision that this is going to be a different type of officer at the WCB? We now have officers who are investigating safety situations: they are investigating technical risk, they're investigating hazardous chemicals, and they're investigating the safety of equipment. Here we have a very different kind of investigation that lends itself far more to a labour relations officer than to a health and safety officer. I'm wondering if the minister envisions that it will be a different type of officer with a different education that's going to be recruited. Or is it that the existing occupa-

[ Page 8200 ]

Hon. D. Lovick: It seems to me that we do indeed have a wealth of expertise and experience available to us, and if we are talking about putting together some training for an authentically new position, it seems to me that we need to look no further than, say, the employment standards branch. Those people have that kind of training, and we could certainly look into this -- or do this.

C. Hansen: Does the minister envision that we will be seconding individuals from the employment standards branch? I would add another question to that: is there going to be an expansion in the number of officers that the WCB is going to require, not just for this particular section but for this part that is being added to the WCB act?

Hon. D. Lovick: As I said a while ago, few refusals and few complaints, in all likelihood. The answer to the two questions is: number one, no, and number two, no as well.

Section 15, section 153 approved.

Hon. D. Lovick: Mr. Chairman, may I suggest that a brief recess might be appropriate at this point?

The Chair: On agreement by members? We will take a brief recess and be back by 4:30.

The committee recessed from 4:21 p.m. to 4:29 p.m.

[H. Giesbrecht in the chair.]

On section 15, section 154.

Hon. D. Lovick: Mr. Chairman, we had a brief recess after completing division 6, and we're now starting a new division. I'm wondering if I might ask the Chair's indulgence, as well as the cooperation of my colleagues opposite, and suggest a slight deviation from our normal procedure. The other day the member for Okanagan-Vernon raised some questions regarding the impacts of the legislation on the education budget for the province, and I assured her that I would get some answers for her. Given that those matters were raised in the House, I'm wondering if it's appropriate for me to respond here, even though it's a section that we dealt with some time ago -- namely, section 134.

[4:30]

Hon. D. Lovick: Before the member opposite says aye to agree, I would suggest, Mr. Chairman, that I give a brief response and then allow my colleagues opposite, if they so wish, to respond to the information that I read into the record, but that that is the end of it. We aren't opening up section 134 all over again. We have indeed done that. If that's agreeable to the member for Okanagan-Vernon and the debate leader of the opposition, I would be more than happy to read that into the record now.

The Chair: Is the committee agreeable? Please proceed, minister.

Hon. D. Lovick: Thanks, Mr. Chairman. I appreciate that.

First of all, I want to thank the member for Okanagan-Vernon for her questions; I fear I was perhaps a bit precipitate in dismissing them out of hand, and if I did so, I didn't mean to. I guess it was what I thought was, frankly, an exaggeration of the concern, and thus I responded as I did.

Let me begin, then, by responding to her statement by offering a few numbers of ours in the ministry -- numbers that I think will underscore the need for health and safety in schools as much as in any other workplace. In 1997, for example, there were 5,437 claims paid in the school board's subclass. Of these, four were fatal claims. Three were for the deaths of teachers/instructors, and one was for a nurse. There indeed have been 13 fatalities in the school board subclass since 1988. Claims costs in 1997 totalled $13,661,395 for this school board subclass. Further, in 1997, 74,482 workdays and $9.919 million in wages were lost as a result of claims. Injury rates for short-term disability claims were the equivalent of two person-years or 104 weeks of employment. Claim duration averaged 30 days per claim. Mr. Chairman, I think you would agree with me that these figures are startling. If the member wants to talk about reduction in classroom services, I think that in fairness we must also consider just how classroom services are impacted by the time and the money spent with respect to these claims.

I must also say that my considered opinion is that the statement made by the member was in effect an overreaction and was somewhat extreme when it came to the impact of Bill 14 on education services. Virtually every school district in this province already has a district-level health and safety committee. Additionally, the B.C. Teachers Federation has been working for the past three years to establish school-specific committees, and these committees already exist in many, many schools in British Columbia. Any school that has 50 employees or more -- teachers, teacher aides, clerical staff, administrators, librarians, nurses, maintenance staff, etc. -- is already required to have a committee in place. No one thus far has stated that this requirement has placed an unfair burden on education budgets. Additionally, most school districts, through their collective agreements, have provisions for paid leave for union business, including occupational health and safety training. This, then, is already happening.

While it may be difficult -- and I'm certainly prepared to acknowledge this -- for some of the smaller schools to put in place one committee for each school, we should also not forget that Bill 14 provides some flexibility. It allows the Workers Compensation Board to authorize variations such as one committee for multiple workplaces of the employer. In smaller school districts it may well be appropriate to consider one committee functioning for several schools.

I'd just like to make a couple of final points on this matter. First, these committees are not just about the health and safety of the staff working in schools. They are also very much about the health and safety of our children attending those schools. They address many issues such as environmental concerns, which will of course have a direct impact on the health and safety of the students in our schools.

Second, the Workers Compensation Board, through its Student Work Safe initiative, is working very hard in the schools to raise awareness of the importance of healthy and safe workplaces and work practices. The injury rate among young workers is frighteningly high -- appallingly high. The presence of a joint committee helps to build safety awareness among the students and also, I think, acts as a valuable learning resource, including reinforcing the messages of the board.

[ Page 8201 ]

I hope that information is helpful. Albeit after the fact, I want to thank the member for Okanagan-Vernon for raising the matter and thank the members for allowing me this opportunity to clarify the issue from this ministry's perspective.

A. Sanders: Thank you to the minister for procuring the information and bringing it back to the House. I have just a few questions on that information. Of the four fatalities within the confines of school grounds that were reported in 1997, were these fatalities related to the job, or were they from causes other than job-related risks and so on?

Hon. D. Lovick: Mr. Chairman, just to clarify, if I may, I said very clearly that I would make a statement, that I would welcome a response from the members opposite -- the member for Okanagan-Vernon as well as the debate leader, the member for Vancouver-Quilchena -- but that we're not reopening the section. If the member wants to put those questions on the record, I would be happy to get that information for her, but I will not, at the moment, use committee for that. Okay?

A. Sanders: The reason I asked the question as a start to looking at what the minister has provided in terms of information is that fatalities on the job occur in all sectors. The implication of a fatality on the job from myocardial infarction -- a 60-year-old who happens to drop dead on the job -- is quite different than to assume that for some reason Bill 14 has saved them because we now have this health and safety committee in the schools. I was trying to really ferret out the information as to whether it related at all to the job safety standards. In most places, we would not see schools as a high-hazard work area, equivalent to a mine or a sawmill.

I originally asked these questions for a very good reason. The school districts had written to me in some cases, stating that the implications of the health and safety committee with respect to direct and indirect costs could be quite considerable -- for one small district, upwards of $40,000. Because this has not been budgeted for in the education coffers, it is certainly my job to make sure that the introduction of Bill 14 is not going to take scarce money needed for the education of our kids out of the actual classroom and be put into the creation of additional bureaucracy that will or will not, depending on who you listen to, have any direct effect on the safety of those individuals working on the premises.

These are the kinds of things I will look into, hon. Chair, with respect to the revenue-neutrality of Bill 14, which the minister has alluded to -- that Bill 14 will not provide additional costs for school boards that are significant. I am certainly pleased to hear that he has been working with the Minister of Education, and I would hope that he would follow up on that to make sure that we can leave it as revenue-neutral as possible, as the schools are already short of needed dollars for classroom education.

Hon. D. Lovick: I thank the member for Okanagan-Vernon for her response, and I will certainly undertake to get her a formal response to those particular points.

For division 7, section 154, there is on the order paper an amendment in my name, a copy of which we have shared with my colleagues opposite. It points out that this was simply a technical editing error. We're adding the word "reasonably" to ensure consistency within section 154(3) and with other references in the bill. I would accordingly move that amendment now:

[SECTION 15, in the proposed section 154 (3) of the Workers Compensation Act, by adding "reasonably" immediately before "practicable".]

Section 15, section 154 as amended approved.

On section 15, section 155.

C. Hansen: Actually, I know that my colleague from Peace River North would like to ask leave for an introduction. I'll put my question to the minister and then allow for that introduction.

Here it says, "An occupational health and safety information summary for a workplace or workplaces of an employer may be requested by. . . " and then it lists the different bodies that can request that information summary. I'd like the minister to explain for us what an information summary is. But I'll leave that question with him and defer to my colleague from Peace River North.

R. Neufeld: I ask leave to make an introduction.

Leave granted.

R. Neufeld: Today in the building I had the pleasure of having approximately 15 grade 6 and 7 students and their teacher, Ms. Muscat, along with several adults, from Chalo School in Fort Nelson. Fort Nelson is the northernmost community in my constituency and also the largest northern community in British Columbia. Would the House please make them welcome to Victoria.

Hon. D. Lovick: It's always so nice to hear the member for Peace River North, who is unaccustomed to making introductions in the House.

Interjection.

Hon. D. Lovick: And when he does, as he says, they count. I think he's quite appropriate to point that out.

On section 155, the member's question referred to the types of information in more specific terms -- information that would be included in the summary. Let me just give him a number of examples, if I might: the number of injuries and fatalities reported to the board, the number of claims, the number of lost workdays in relation to claims, the number of inspections, investigations and inquiries conducted by the board and the number and types of orders made. That is what we're talking about being specific to the employer.

C. Hansen: So basically, this information summary is a fairly substantial document. There's going to be a significant amount of information contained in this document that will come from the WCB. I'm wondering if the minister could outline for us how much staff time is going to have to be devoted by the WCB to preparing these information summaries as they are requested from various worksites around the province.

[ Page 8202 ]

[4:45]

C. Hansen: If the minister is saying that all that's going to be in these information summaries is a listing of the statistics for the previous year for that worksite. . . . The minister is saying that there's no general information, no information pertaining to industry classification or to the type of worksite that might be compiled by the board. Is it just the specific data pertaining to a specific worksite that would be forthcoming? I see the minister nodding, so I'll accept that.

Certainly, if you have in place a newly structured health and safety committee, the first thing that they would do, I assume, is look at what their rights and responsibilities are, and this is one of the areas where a health and safety committee has the power to request information. So certainly the first order of business of a newly constituted health and safety committee would be to make sure that they've got all the pertinent data pertaining to that workplace. Two things. First of all, why wouldn't they just go to the employer to get that information? They would probably have it more readily accessible than the WCB. Secondly, given that this is information that as a matter of right can be requested from the WCB, why does the minister feel that we wouldn't have all 6,000 newly constituted health and safety committees making this kind of request in order that they have the data at their fingertips to allow them to do their work?

Hon. D. Lovick: If the employer can give them the information, that's certainly acceptable; they can do so. That information is already FOI-able -- at present, in any event.

C. Hansen: I note with interest that this section puts it that the board must respond. The wording in subsection (2) is: "On receiving a request under subsection (1), the board must prepare a summary. . . . " I'm wondering why the minister hasn't given the board the capacity or the latitude to deal with frivolous requests that could potentially come in under this section.

Hon. D. Lovick: Well, I'm working on the assumption that there aren't going to be those kinds of frivolous requests. I just point out, though. . . . I must say, I'm accustomed to being able to have a clear sight line to the member for Vancouver-Quilchena. I now have to look through the member for Richmond-Steveston, and that's really tough. But anyway, the point I was going to make is that -- again, this sounds a little bit cheeky -- I suspect that if we had "may" in here, the member would probably be asking me: "Why isn't it 'must'?" I have a hunch that it's that kind of debate. In this case, we simply accept the proposition that if the complaints -- the concerns -- are indeed serious, then the board ought to respond to those concerns expressed by the clients it serves.

Section 15, section 155 approved.

On section 15, section 156.

C. Hansen: I want to ask a question pertaining specifically to subsection (3). This gives the power to the board to insist upon certain information being divulged. Then in subsection (2) it basically says that an officer of the WCB must not publish or disclose information. But then we get to subsection (3), and it says that the board may disclose or publish information referred to in that subsection or authorize it to be disclosed or published. As I understand it, there are situations -- and I understand this has happened in British Columbia -- where the compulsion to give information has in fact hindered the rights of an individual in related prosecutions. Again, I'm not a lawyer, but I'm told that the reference is a court case called B.C. Securities Commission v. Branch. I'm wondering if the minister could comment on the lack of restriction that is being put on the WCB in terms of the disclosure of otherwise confidential information.

Hon. D. Lovick: I am advised that the board must still abide by the rules of FOI -- freedom-of-information -- legislation and that the board will be guided above all by the determination of whether the public interest is to be served. That, I gather, is its ruling principle in this area.

C. Hansen: As I understand it, when the minister says that the board will be governed by that, certainly that's not what we have before us here. In terms of FOI, I don't believe that information would be disclosed that could have a detrimental effect on somebody's right to a fair prosecution under a different piece of legislation; that in itself would not be subject to an FOI request. My reading of the way this section is worded is that this information cannot be disclosed. My question to the minister is: does that not take precedence over the Freedom of Information Act, unless the board itself discloses it? So if anybody other than the board discloses it, that would be a violation of this act. But under this section, the board may disclose information that has been pulled together by an investigator for the WCB.

Hon. D. Lovick: My apologies to my colleagues, Mr. Chairman. I'm struggling with this. I think I now understand the point being made.

Looking at subsection (2) along with subsection (3). . . . And we need to see them both, because they obviously have a clear connection: "Except in the performance of his or her duties, (a) an officer, (b) a person who accompanies an officer. . .or (c) a person who conducts a test. . .must not publish or disclose information obtained or made by the officer or other person in connection with his or her duties or powers under this Part." This is to protect the confidentiality of the information; that's obvious so far. The conclusion, however, is that we also need another section that says: "In the area of the overriding public interest and consistent with the rules of the freedom-of-information legislation. . . ." Public interest, by the way it is defined under the Freedom of Information Act, is that you knee-bend to make this exception. In other words, an overriding public interest is deemed to be in some circumstances sufficient to nullify or otherwise negate the section I began by reading -- that one is not allowed to publish or disclose information. I hope that clarifies.

G. Plant: When the minister speaks about overriding public interest, I assume he is speaking about circumstances

[ Page 8203 ]

Hon. D. Lovick: The member is correct.

G. Plant: I'm a little concerned that the power to disclose given in subsection (3) is in undefined, unconstrained and unrestricted terms -- that is, the minister speaks of the public interest. That could be a legitimate criterion for giving the power to override the general presumption of confidentiality to the board, but there is no such provision made -- that I can see, anyway -- in subsection (3). The question is: why is the board given the power in such unrestricted terms?

Hon. D. Lovick: I don't believe the power is unrestricted. Rather, I think the reference is directly to freedom-of-information legislation. Surely that in itself is the qualification and the restriction.

G. Plant: I'm confused. I'm trying to read subsection (2) and subsection (3), and I don't see any reference in either of those subsections to the Freedom of Information and Protection of Privacy Act. I will repeat my question and see if it gets a different answer.

Hon. D. Lovick: The member is quite right; there isn't the specificity in (2) or (3). But if the member will note, in the first section, the broader introductory clause of section 156, we will see that the last clause in fact is "or as otherwise required by law." Given that the law obtains and the Freedom of Information Act refers, that should surely do what the member requires.

G. Plant: I'll leave aside the interesting statutory question about whether a board is a person within the meaning of section 156(1), given that the board is dealt with specifically in section 156(3). It seems to me that to say that it's otherwise required by law could obviously include the Freedom of Information and Protection of Privacy Act. Nonetheless, at least in my reading of this, I don't think that constrains the board's authority in any way.

If I were trying to advise the board on what its ability is in terms of disclosing or publishing information, I'd look at section 156(3) and say to the board that there's nothing there that constrains their ability to disclose or publish information, other than the usual general law that says you can't do it in bad faith or with the kinds of things that someone would perhaps have grounds to review judicially.

Interjection.

G. Plant: I would say that that's not enough. I would say, at least thinking about it as a first impression, that if we are serious about protecting rights of confidentiality and if, in pursuit of what appears to be a commitment to confidentiality as expressed in section 156(1) and section 156(2), we go to the trouble of saying, "Here's what you can't disclose, and you can't disclose it generally except in certain circumstances," then I think it would be legitimate to impose on the board some kind of description of the circumstances in which it would be legitimate to disclose or publish information. Even using the language "in the public interest" would be better than no language at all.

I guess I have to say that in the absence of any better explanation than the one offered to date, I don't think that this section, in the result, strikes a reasonable balance. It appears to say that employees of the board generally aren't supposed to publish or disclose information, but then it gives the board the virtually unrestricted power to disclose it whenever it sees fit. That, in the result, does not strike the balance. It imposes no obligation on the board to explain or justify the decision that's made to disclose or publish information. I may still be missing something, and perhaps on that basis, I'll give the minister one more chance to reassure me.

[5:00]

My point is that this is not unrestricted but is, rather, subject to legislation, to the rule of law. If I understand the member's concerns well, it seems to me that what they really cash out to mean is that despite all of this section that says all of these things about protecting confidentiality, one small section here -- namely, section 156(3) -- the member would. . . . I don't mean to put words in his mouth. The member seems to be saying that this is a loophole and a problem. In other words, all the intention of this thing is spelled out in great detail, but because of what the member perceives to be some kind of ambiguity -- or at least not being an absolutely restrictive and conclusive statement in section 156(3) in a single sentence -- this is a problem with the whole section. If that is the member's contention, it is one with which I disagree.

G. Plant: I can reassure the minister in a number of respects. I don't think there's anything ambiguous at all. I think it's very clear, and I don't think it's a loophole either. I think it's a fairly classic case in terms of the drafting of statutes to appear, on the one hand, to create something and then, on the other hand, to give a statutory body the authority to override the provision.

The question in all these cases is: does the statutory body have any constraints on the exercise of the power to displace the presumptive right? In this case, it's the presumptive right to confidentiality. The plain fact is that in this case, the statutory body is under no express limitations in respect of the exercise of authority because of the way that subsection (3) is drafted. The only constraints are what I would call the constraints of the general law. I suggest that that is the right balance. It's not a question of ambiguity; it's not a question of loopholes. I think it's pretty clear, unless I've missed something.

I gave the minister his one last chance, and I respect the minister's attempt, but it seems to me that what people reading this are going to want to know is that there is some confidentiality. It appears, when I read subsection (1). . . . When I read subsection (2), it actually says to specific individuals who have responsibilities under this act that they must not generally disclose, and then -- having in effect given all of these things -- it takes them all away, in one sense. It certainly doesn't give the individual -- the person, for example, who is conducting the test -- the right to override. It moves that up to the board, and one could say that that's. . . . I haven't heard this defence yet, but the minister could stand up and defend the balance that's been struck by saying: "Well, if we're going to override the right of confidentiality, then the body to vest that authority in is the board" -- as opposed to letting any number of officers do it.

But even then, I suggest that the better approach would be to at least say, for example, that the board may disclose or

[ Page 8204 ]

Here, we don't even get to that point, because it seems to me that the board's power is not constrained at all. I think that someone reading this section, particularly someone who is perhaps not even aware of the general administrative law principles around how these things are likely to be interpreted, would say that in the final analysis, this isn't really very much of a confidentiality right at all. It can always be overridden by the board, and the board doesn't really have to say why. I think it would be unfortunate to allow that to happen.

Maybe I could say, by way of footnote, that in one respect the authors of this subsection have done something which is useful. In subsection (5), the authors have clarified an issue that was a bit uncertain out there in the world as to whether or not this kind of stuff actually made the information confidential within the meaning of the Freedom of Information Act. If you supply information in confidence, it attracts a generally higher level of protection. And there have been arguments in the courts about whether simply saying that the board can't use information makes it confidential. Subsection (5), I think -- without having gone through all of the particular details of the subparagraphs -- is actually a useful step in terms of enhancing privacy rights. But I still think that there's a problem with subsection (3). At the risk of contradicting myself, perhaps I will give the minister one more chance.

[W. Hartley in the chair.]

Hon. D. Lovick: I don't think the issue is about giving the minister one last chance; rather, I think it's the case that the member does not like the explanation given. This section -- indeed this entire division -- has been run by the freedom-of-information office. They accept the proposition. They implicitly seem to accept our assurance that this is indeed a legitimate protection of confidentiality.

If the member is absolutely convinced that that assurance isn't sufficient and that there is a major problem here, I'm perfectly prepared to refer the matter to legislative counsel or something. I have no difficulty whatsoever in standing this down until such time as we do that. If that is the position of the member and his colleagues -- rather than just one legal opinion or something -- I would be perfectly prepared to do that. Is that indeed the case?

Interjection.

Hon. D. Lovick: Okay, then we'll stand it down until I can confer with legislative counsel.

The Chair: By agreement, section 15, section 156 will be stood down.

On section 15, section 157.

C. Hansen: I don't have any particular questions regarding section 157, but it may be relevant to section 156 in that context. So it may be better if we dealt with sections 156 and 157 at that time, although I'm prepared to reconsider that. This section was called suddenly, and I didn't have a chance to really consider it in that context.

Hon. D. Lovick: No, I disagree. It seems to me that this is straightforward. This isn't contingent on the other one at all. I see the member has reconsidered that.

Section 15, section 157 approved.

On section 15, section 158.

C. Hansen: In division 8, "Miscellaneous Authority," we are starting to deal with the regulation of hazardous substances. I wonder if the minister, in drafting this legislation, has consulted with the Ministry of Environment. My concern is that the authorities here may overlap with the authorities of the Ministry of Environment with regard to the administration of the Waste Management Act.

Hon. D. Lovick: I'm advised that they do not and that this particular section is indeed consistent with existing regulations and with provisions in other jurisdictions.

Section 15, section 158 approved.

On section 15, section 159.

C. Hansen: Here we have a section titled, "Certification and training of first aid attendants and instructors." It says: "The board may (a) supervise the training of and train occupational first aid attendants and instructors. . . ." I wonder if the minister anticipates any expansion of the existing role that the WCB has in this area.

Hon. D. Lovick: The answer is no. I probably should have said that this section is not a new authority; rather, it existed within part 1 of the Workers Compensation Act, section 70(3), but is now being moved into part 3 of this legislation. I would make the same comment with regard to section 160 when we get to it, except that that is section 70(1).

C. Hansen: I do have some questions that pertain to the relationship that the WCB has with several organizations that train first-aid attendants in the province. Some of them are not-for-profit organizations; some of them are for-profit training organizations. I would be prepared to defer that discussion to estimates, if the minister would prefer, or we can deal with them here. I seek some guidance from the minister.

Hon. D. Lovick: As the member was speaking, I was saying to myself: "Sounds more like estimates to me." Accordingly, I would do that.

Section 15, sections 159 and 160 approved.

On section 15, section 161.

C. Hansen: Now, this section, I understand, is new. This was not in the existing regulations. Actually, it may have been in the existing regulations but never proclaimed; that may be a better way to interpret it. Just to zero in on a couple of specific areas, under "Medical monitoring programs," we have a subsection (2). It says: "The following apply to medical monitor-

[ Page 8205 ]

Hon. D. Lovick: Two points. First to the specific re that particular section, section 161(2)(b), the answer is that all medical monitoring is voluntary -- right? People are not compelled to do so.

To the larger question that was in effect the preamble to the member's question, I would just point out that the medical monitoring provisions that are contained in this legislation, while they are not addressed by the royal commission, are not new. Rather, the board has existing authorities within part 1 of the Workers Compensation Act, section 6(5), as well as in the occupational health and safety regulations. All of those have simply been brought forward to part 3.

C. Hansen: Is the minister saying that everything currently contained in section 161, which is before us, is in fact found either in the regulations or in the existing act?

Hon. D. Lovick: Essentially, yes -- though I would be reluctant to say definitively, absolutely and irrevocably or something like that.

C. Hansen: I'm not going to pretend that I'm 100 percent sure of my facts here, because I had written myself some notes, and now I'm not sure where my notes came from. My understanding is that while some of this language was written into the regulations, those sections of the regulations were never brought into effect. Is that correct?

Hon. D. Lovick: No.

C. Hansen: I'll accept that. Not that I had any choice -- right?

Under section 161(3)(f), it's interesting that there is an ability to bring in regulations to prescribe responsibility for keeping the records relating to this program. I'm always sensitive to provisions in legislation that give authority to impose more recordkeeping, and I think that's the kind of bureaucracy that can drive a lot of small businesses to fits of distraction in trying to implement some of these programs that the Legislature may come forward with. I'm wondering if the minister would assure the House that there is going to be adequate consultation with the small business community before we start adding recordkeeping obligations on them.

Hon. D. Lovick: I understand that, first of all, it's very rare that medical monitoring programs are in place. There are relatively few workplaces affected by that. As well, I understand that the question is what the appropriate way to hold those records is, especially when you're dealing with individuals' medical records, unless it is perceived that this is the appropriate jurisdiction.

[5:15]

On section 15, section 173.

C. Hansen: This is titled, "Incidents that must be investigated." It says: "(1) An employer must immediately undertake an investigation into the cause of any accident or other incident. . . " and so on. I would like to ask the minister what the obligations of an employer would be in a case where there is an investigation already underway by a police officer or other official. The investigation would actually take precedence, I would think, over an investigation by an employer in this kind of situation.

Hon. D. Lovick: I'm advised that it is possible to have duplication, but only if, as and when that is necessary -- namely, when the police may be investigating the incident from one perspective and the WCB might wish to do so from another. I'm advised that in most instances, however, probably one investigation would effectively preclude the need for another one occurring.

C. Hansen: I guess my reading of the clause is that the employer must immediately undertake an investigation. But is the minister saying that if there is another investigation underway, that would in fact be the investigation that is required of the employer in this situation?

Hon. D. Lovick: The brief answer is not necessarily, and that's apparently because the employer will do the initial examination, the first investigation, and then he or she will determine whether the WCB may need to be involved to get further information. In some instances the police could also be called. So that's the reason for that.

Section 15, sections 173 to 177 inclusive approved.

On section 15, section 178.

B. Penner: The following sections raise a number of serious concerns as they pertain to the right to be protected against unreasonable search and seizure. Division 11 contains a number of mechanisms whereby staff employed by the Workers Compensation Board can do a number of things pursuant to investigations under the act. As I've indicated, a number of concerns are raised with respect to protecting the individual's rights against unreasonable search and seizure or arbitrary search and seizure. Obviously this bill, Bill 14, is not a matter of criminal law. Nevertheless, section 8 of the Charter of Rights and Freedoms states very clearly that every person. . . . I'll read it into the record: "Everyone has the right to be secure against unreasonable search or seizure."

If I can ask for the Chair's indulgence, I'll summarize one leading case from the Supreme Court of Canada interpreting this section of the Charter of Rights as it pertains to administrative law -- i.e., not criminal law strictly speaking, but laws that are on the books for the sake of regulation.

I see that the minister wants to make a statement about this section, and I'll give him that opportunity.

Hon. D. Lovick: I'm sorry to interrupt the member, but for purposes of clarity and clarification for the record, I think that where the member wants to raise those apparently very legitimate questions is with section 179. At the moment we're simply talking about the application of a division that says in fact that what this says about inspections also applies to investigations and injuries. So my suggestion, for the Hansard record, would be that we deal with 178 and then go to 179 to the member for Chilliwack's concerns.

Section 15, section 178 approved.

On section 15, section 179.

[ Page 8206 ]

"The purpose of this section" -- that is, the section against unreasonable search and seizure in the Charter of Rights and Freedoms -- "is to act as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwise possess. It does not in itself confer any power, even of reasonable search and seizure, on these governments. Accordingly, an assessment of the constitutionality of a search and seizure, or of a statute authorizing the search or seizure, must focus on its reasonable or unreasonable impact on the subject of the search or seizure, and not simply on its rationality in the furtherance of a valid government objective.

"This section guarantees a broad and general right to be secure from unreasonable search and seizure beyond mere protection of property. Its protections go at least as far as protecting an individual's reasonable expectations of privacy. Thus an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. The purpose in this section of protecting individuals from unjustified state intrusions upon their privacy requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This can only be accomplished by a system of prior authorization, not one of subsequent validation. Accordingly, where it is feasible to obtain prior authorization, such authorization is a precondition for a valid search and seizure. Accordingly, there is a presumption of unreasonableness where the search has taken place without a warrant, which the party seeking to justify the warrentless search must rebut."

I'll refer to section 179(2)(a): "An inspection may be conducted (a) at a reasonable hour of the day or night." That leads me to wonder: what hours are there other than those that occur during the day or during the night?

Under subsection (3), there's a list of the things that an officer on behalf of the Workers Compensation Board may do when conducting a search. Subsection (3)(b) states: ". . .inspect works, materials, products, tools, equipment, machines, devices or other things at the place." That's pretty broad: "other things." What other things? We don't know. The legislation doesn't say. Presumably it could be anything at the workplace.

My concern is that that is simply too broad, and it may not withstand a Charter challenge if brought before the courts. I believe that when the government is attempting to give regulatory officers the power of search and seizure, they have to make sure that any intrusions are limited. There has to be a reasonable limit to the infringement on an individual's right against arbitrary search and seizure. We can already see, looking at this section, that there is no provision for prior authorization before a search takes place under this legislation. The case that I was referring to earlier, the case of Hunter et al v. Southam Inc. at the Supreme Court of Canada, said that the ideal situation is an approval ahead of time from at least a quasi-judicial body authorizing a search and/or a seizure upon any private premise. This legislation does not contain that, and I think it exposes this legislation to at least the potential of a Charter challenge in our courts.

I'll go a little bit further in section 179. Section 179(3)(h) requires individuals, presumably employers, "to attend to answer questions and require questions to be answered on oath or affirmation." It seems to me that this provision has the potential of violating another protection under the Charter of Rights and Freedoms, and that is the protection against self-incrimination contained in section 7 of the Charter of Rights and Freedoms.

I'll just refer to that, if I may: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." This section has been interpreted by the courts, including the Supreme Court of Canada, to include protection against self-incrimination. "A statutory compulsion to testify engages the witness's liberty interest under this section. . . ."

It goes on talking about the rights to fundamental justice and the limits that must be placed on governments purporting to require members of the public to testify against themselves -- being conscripted against themselves to give evidence on behalf of the government.

There are a number of very onerous provisions like this in section 179. It's been pointed out to me that this law, in effect, gives employers fewer rights than criminals who are going through the court process in Canada. I'm wondering if the minister can give some explanation for the sweeping nature of some of these provisions contained in section 179.

Hon. D. Lovick: First of all, I ought to report that I'm having some difficulty simply because I think. . . . In fairness to the member, I think we're going much beyond section 179, and we seem to have gone up to section 185 in a couple of spots as well. I'll try and put this in perspective -- in some graspable perspective, as it were.

I think it's worth noting that the royal commission report noted very clearly -- and if the member has a copy of the document handy, I'll refer him to page 65 -- that the current act does not require an officer to first obtain a court order or warrant in order to access medical records or investigate private dwellings. What the recommendation does -- what the legislation does -- is in fact give a legal framework to those kinds of powers. There wasn't one before.

In terms of whether we're violating people's civil liberties under the Charter, my own reading of the document. . . . I too am somebody who has a pretty good knowledge of the Charter and. . . . I won't say of case law, but I certainly have some familiarity with it. I won't say this is bullet-proof against Charter challenges, but it's sure awfully close to it. I don't think we're going to have to go around invoking notwithstanding clauses or anything to protect ourselves with this legislation. As I say, it is built entirely on the fact of (a) reasonable grounds for doing things and (b) the need to get legal warrants and legal rates. In fact, that self-same provision about requiring a legal warrant and so forth is built into this entire division and beyond. I think section 222 comes to mind -- just to make the point about court orders for access. I mention that as just an illustration of the care -- the scrupulous care, it seems to me -- that the drafters of the legislation have taken to ensure that we are not talking about unreasonable search or unreasonable seizure. Rather, we do so only

[ Page 8207 ]

[5:30]

B. Penner: I'd like to reply to the minister's comments that the bill contains other provisions elsewhere allowing for a search warrant to be obtained through various processes. However, section 179(4) states: "The authority to conduct an inspection under this Division is not limited by any other provision of this Part or the regulations giving specific authority in relation to the inspection." It seems to me that the powers conferred in section 179 stand apart from anything else within Bill 14 authorizing inspections, which are searches and seizures, whether or not the bill contains provisions elsewhere for a search warrant to be obtained.

My question is: why is that? Why would we not provide for a mechanism allowing for some type of review and prior authorization before a search and/or a seizure takes place? Again, I point out the broad, sweeping powers that an officer has under section 179(3): ". . .inspect works, materials, products, tools, equipment, machines, devices or other things at the place" being inspected. It's very broad. There's unlimited scope.

Usually when a search warrant is issued by either a judge or a justice of the peace, it will contain a provision that allows peace officers executing the warrant to seize items related to the suspected offence. But there is a limit. It's not wide open; it's not open-ended. There is some limit to it, which I see is missing here in section 179.

Hon. D. Lovick: I think the best answer I can give at the moment is simply to remind the member that section 179 is the authority to conduct inspections. Section 185 is about seizure, and I think that's sufficient unto itself to answer that last question.

Section 15, sections 179 and 180 approved.

On section 15, section 181.

B. Penner: Section 181 purports to give some added protection to those workplaces that also happen to be the residence of, I suppose, the owner. In reality there are fewer protections granted in section 181 than homeowners otherwise have under the Charter of Rights and Freedoms. There are fewer safeguards contained in section 181 than currently exist under the law for everyone else. What this section is saying is that when you happen to be an employer and some work takes place where you reside, you have a lower standard of protection against search and seizure, and your right of privacy is compromised. I'll read it into the record. Section 181(1) states:

"If a workplace, in addition to being a workplace, is occupied as a private residence, the authority under section 179 may be used to enter the place only if

(a) the occupier consents,

(b) the board has given the occupier at least 24 hours' written notice of the inspection,

(c) the entry is made under the authority of a warrant under this act or the Offence Act, or

(d) the board has reasonable grounds for believing that the work activities or the workplace conditions are such that there is a significant risk that a worker might be killed or seriously injured or suffer a serious illness."

For anybody else wanting to come into a residence, you have to go through the procedure of getting a Criminal Code warrant with a much higher standard. You'd have to establish ahead of time, to an independent justice of the peace or a Provincial Court judge, that there is a reasonable probability of criminal activity taking place at that location. It's a higher standard to meet and requires prior authorization from an independent person before that search is allowed to take place. There is no such provision like that in section 181.

I'll ask the minister for his comments.

Hon. D. Lovick: I make the point that we're talking about a workplace that also happens to be a private residence. It's not a matter of going to somebody's private dwelling because you believe there's some kind of criminal activity or some other nefarious thing going on there. Rather, this is based on some evidence, some perception that there is indeed a problem, and there are other protections built in for the owner-occupier of a residence.

I would just point out, as well, that this section in fact adds protection for the individual. It protects the individual's privacy more than the current regulations do, in terms of workers compensation. This is, in fact, an improvement from a civil liberties perspective, if you will. I would also note that this provision is similar to the Residential Tenancy Act -- what ought to limit one's ability to go and knock on people's doors and search their premises. This provision was added at the request of the employer members of the reference group. They wanted precisely these kinds of protections, so that may be some comfort to the member who is posing the question.

B. Penner: That's not what I've been hearing from some of the employers who have contacted us in the official opposition. I refer to section 179(3)(i). These are some of the powers that people will have under section 181: to "take photographs or recordings of the workplace and activities taking place in the workplace." Most of the time it wouldn't be a problem, except in these situations where the workplace also happens to be someone's dwelling, somebody's home. Again, without warrant an individual will be able, on behalf of the Workers Compensation Board, to go into that person's home and take photographs and/or recordings.

That's why we have some concerns. I'm raising, in a legitimate way and in a very sincere way, that this is a concern. I know that we're in an age where we're all trying to be cost-conscious and are in an increasingly competitive marketplace. Owners are now often occupying, for example, the top floor of their shop, as a way to reduce their costs. That's becoming more common, not less common, in British Columbia.

[ Page 8208 ]

G. Plant: I've been following the debate on this provision with some interest, as I'm sure you have, hon. Chair. I wonder if the minister could assist me in one respect. The provisions of section 181(1) -- that is, the restrictions on and the permission of obtaining access to private residences which are also workplaces -- only apply in respect of board officers who are doing the things in 179(1)(a) around preventing work-related accidents or ascertaining the causes of such accidents or investigating compliance with the act.

If one were looking to give a small measure of comfort, I suppose, to employers who may have the apprehensions that my colleague has spoken of, one could say: yes, but of course the only circumstances in which one really could enter workplaces that are residences are for those purposes in section 179(1). Am I reading the provisions together properly or correctly?

Hon. D. Lovick: The member is indeed reading that section properly and correctly, and I thank him for this intervention.

Section 15, sections 181 and 182 approved.

On section 15, section 183.

C. Hansen: I'll go first and then defer to my colleague from Chilliwack.

This was an example, I think, of a posting obligation that's totally open-ended. In every other provision that we've had in this legislation, the requirements to post have been defined as a period of 12 months or it's been the reports of the health and safety committee for the previous three meetings -- which have to be monthly, so by definition that means three months. But here we have an obligation to post that is totally open-ended. I wonder if the minister could give some definition to it.

Hon. D. Lovick: I'm advised that the time would normally be on the order itself, but the posted notice itself doesn't have to. . . . There is no particular limit on how long that needs to be there. That's the advice I'm given.

C. Hansen: Is that something that the minister could assure us -- that orders issued which have this posting requirement would in fact include instruction on how long they must be posted for?

Hon. D. Lovick: Yes, Mr. Chairman.

B. Penner: Hon. Chair, perhaps your microphone wasn't working quite properly. Down at our end, we were not able to hear you call section 182. I wonder if we could revisit that, simply so I could point out what I'm sure is a typographical error in section 182(2).

The Chair: On agreement, we'll deal with that.

On section 15, section 182.

B. Penner: I thank my colleague the member for Kamloops-North Thompson. He mentioned that there is a typographical error, and I agree with him. Section 182(2) says: "A worker is to be considered not reasonably available for the purposes of subsection (1) if the employer objects to that the person's participation in the inspection on the basis that it would unduly impede production, but the employer may only object to one person on this ground." I believe the error occurs just after the reference to ". . .subsection (1) if the employer objects to that the person's participation. . . ." Perhaps an amendment would be in order.

Hon. D. Lovick: I appreciate the member's clarification. I'm not sure it requires an amendment, but for the record we can simply say that there is a typographical error and that it should read "objects to that person's participation" rather than "that the person's participation." I thank the member for that. I don't think that we would require an amendment. I think that's demonstrably a typographical error, simply because it's illogical and absolutely irrational otherwise.

[5:45]

Section 15, section 182 as amended approved.

Sections 15, sections 183 and 184 approved.

On section 15, section 185.

B. Penner: I'm sure the minister isn't surprised to see me rise on this section. This again deals with the powers of inspectors working on behalf of the Workers Compensation Board to seize objects that they come across while searching either a premise that's a workplace or simply just a workplace. The thing that gives me some concern is contained in section 185(1): "An officer may seize something without a warrant if (a) the thing has been produced to the officer or is in plain view, and (b) the officer has reasonable grounds for believing that this Part, the regulations or an order has been contravened and that the thing would afford evidence of the contravention."

I guess we can get into some debate -- and this often follows in court cases -- about just what exactly was in plain view and what plain view means in the particular circumstances. I know that situations often arise where RCMP are enforcing a search warrant, and they go into a building or dwelling house and think they know what they're going to find, but they find something else that is evidence of criminal activity. Even though they are law enforcement officers and the thing they find is evidence of Criminal Code violations, if it's outside the scope of their original warrant and the purpose of their search, they are required by law to go back to a justice of the peace or a Provincial Court judge and obtain an additional search warrant in order to seize that thing.

We may disagree with whether or not that procedure is reasonable and benefits society. However, that is what the courts have concluded, and that's the legal requirement according to section 8 of the Charter of Rights and Freedoms:

[ Page 8209 ]

Hon. D. Lovick: I disagree with the hon. member's conclusion. It seems to me, very clearly, that what we're saying here is that there is a very limited authority to seize something without a warrant. What triggers that, it seems to me, has all the protection in the world for the employer or the owner of the property: ". . .may seize something without a warrant if (a) the thing has been produced to the officer" -- in other words, somebody shows you the smoking gun, as it were -- "or is in plain view." And in case that's not enough, it says : ". . .(b) the officer has reasonable grounds for believing," etc., etc.

I think that's pretty good protection, and I can't see how that could be construed in any way as overdoing it or threatening people's liberties. I would also note that the board can currently seize and retain property for as long as it considers necessary without any judicial sanction. This measure, as the hon. member will note in section 185(4), says very clearly: "As soon as reasonably practicable after something is seized under subsection (1), the officer must bring the thing, or a report of it, before a justice to be dealt with in accordance with the Offence Act. . . ." I think, in short, that there are all those protections built into this particular section. I thank the member, however, for raising the question.

B. Penner: I thank the minister for his comments, and I agree with him that the addition of section 185(4) is a positive step, in that it does provide some protection to an individual that his property will be returned to him, subject to a judicial review.

I note the hour, and I would move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The House resumed; the Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

Committee of Supply A, having reported progress, was granted leave to sit again.

Hon. D. Lovick moved adjournment of the House.

Motion approved.

The House adjourned at 5:52 p.m.

PROCEEDINGS IN THE DOUGLAS FIR ROOM

The House in Committee of Supply A; E. Walsh in the chair.

The committee met at 2:36 p.m.

ESTIMATES: MINISTRY OF SMALL BUSINESS,
TOURISM AND CULTURE
(continued)

J. Weisgerber: I'd like to pursue with the minister some initiatives around Alaska Highway tourism particularly. I know I've spoken with the minister about this on other occasions.

It seems to me that experience in and around the Alaska Highway has shown that major promotions in the United States have resulted in quite dramatic increases in traffic not only on the Alaska Highway but through British Columbia to Dawson Creek and from Dawson Creek northward to Alaska. The initial experience we had in Dawson Creek was on the fortieth anniversary of the Alaska Highway in 1982. The experience there was that as the momentum built toward the fortieth anniversary, the amount of traffic -- the traffic counts -- on the highway went up significantly for about two years before the actual celebration and continued for about three years afterward, declining to more historical levels.

In 1992 it was the fiftieth anniversary of the Alaska Highway, a major celebration that was supported in large measure by the Ministry of Tourism. Again the experience was the same. Traffic counts built quite dramatically leading up to 1992, plateaued that year and the year after and then started to fall off as the promotions in the United States -- and in Europe to a lesser extent -- were discontinued.

What I'm looking for today is some direction for the community as a way to proceed or to pursue, on a more ongoing basis, promotion -- in the United States and, to a lesser extent, around the world -- of the Alaska Highway as one of the engineering marvels of the world. It's pretty clear to me that the real market for promotion of the Alaska Highway is in the United States. It's rubber-tired traffic. It tends for the most part to be self-contained motor homes, trailers, fifth-wheelers -- that kind of traffic.

We need to have a promotion that's supported, I believe, by British Columbia, which is a major beneficiary of that activity. But it should also be supported by Alberta on a joint venture, it should be supported by the Yukon Territory, and it should be supported by Alaska. I think we've got to work as a lead agency in the northeast part of British Columbia to bring all of those entities together in some kind of an ongoing promotion of the Alaska Highway.

I think it's underrepresented. Two years ago, I believe, it was acclaimed as one of the 16 engineering marvels of the world -- man-made marvels of the world -- along with such things as the Eiffel Tower, as a truly world-class achievement. In only nine months, to build a highway through the wilderness, done mostly by American army engineers. . . . That has great resonance in the United States. They feel a great sense of pride in that achievement -- as well they should -- as do the Canadians who participated. But what we have to do, I believe, is find a way to capitalize on that and capitalize on it quickly.

Let me just conclude by saying that there is a lot of thought and work being done in the northeast to try and establish some kind of a centre in Dawson Creek that would recognize the significance of this event, bring together historical documents and be a world-class resource facility based on the achievements on the Alaska Highway. I'm curious to

[ Page 8210 ]

Hon. I. Waddell: First of all, I want to respond to that. I appreciate that the member raised this in the House. As usual, he's a tireless advocate on behalf of the north and his constituents in northeast British Columbia. I'm sorry that Rod Harris, the CEO of Tourism B.C., is not here today. I asked him to go to the salmon discussions with respect to tourism, the salmon lodges and the coho crisis and so on. I'm informed that Tourism B.C. provides $442,000 in funding to the northern region of British Columbia. I've put representatives of the north on the new board of Tourism B.C., who I assume will be sensitive to these issues. I understand that the local community is working on it. I'm sure they need help, and if I can find ways of getting them help, I'll try to do that.

In terms of the community grants, it's rather tight. It's very difficult to get it under that budget. There may be. . . . I'm trying to think of where we could find room -- perhaps through Tourism B.C. As you know, the government gave an additional $2.5 million to Tourism B.C. for marketing. This initiative is very important; I agree with the hon. member.

We are trying to market to German and other European tourists -- which is down a little bit. This is an area which those kinds of tourists. . . . They're good tourists in RVs. . . . They're good at getting around British Columbia. They like that kind of tourism, and they like to travel that way and see the highway. There's a big market with Americans, with the low dollar. We're doing a promotion in the United States. Perhaps -- I'm just thinking out loud a little bit -- as part of that promotion we could think about getting it into some of the ads. You know, there was $3 million worth of promotional ads in Chicago, Los Angeles and San Francisco, because Americans have a stake there.

I'm just trying to remember when the member was talking. . . . Is it the Norman Wells. . . ? During the war they not only built the highway but also a small pipeline. I'm just trying to remember the name -- if the hon. member can help me, if he can remember. . . . I should remember because I actually saw it when I worked in the north. You see the trucks and the vehicles there in the bush, which have almost been preserved because of the nature of the climate. It goes into the Northwest Territories, and it's really quite a wonder in that all the construction in that area. . . . It's true that there are relatives. . . . The hon. member said in the House -- he said again today -- that there are relatives of those American servicemen. Maybe some of the American servicemen and the people that constructed that great wonder are still alive. Wouldn't it be great to get them back up there?

So we're working on this. With respect to Dawson Creek, I'll be talking this afternoon to the mayor of Dawson Creek. I will ask him what is happening there and see what we can find to work towards getting a centre at Dawson Creek.

[2:45]

The member notes that a lot of the Americans who worked on the highway are still alive. I think that's true, although we've got to recognize that it's now 55 years since the highway was built. If the people were anywhere from 20 to 30 years old, that makes them 75 to 85 years of age. One of the things that the proponents of this initiative are concerned about is moving within the next two or three years while there are still significant numbers of these people alive, who could actually be interviewed, give information on tape, etc. Many of the officers, who were perhaps in their thirties or forties at the time, will have passed away. Many of those experiences of people who understood the tremendous challenge of building that highway through the wilderness in nine months. . . . Perhaps many of them have gone, and we should move quickly to get information from those who remain before they too go the way of all living people.

What we want to do is move. . . . The minister's right; the Canol pipeline is what it was called. It was designed to bring crude oil from Norman Wells across the Yukon. It is a historic trail in itself; there's a hiking trail that follows the old pipeline route. There are relics of the construction that were abandoned along the way. I suppose that in today's terms that wouldn't be acceptable from either an economic or an environmental point of view, but in fact they make up part of that history.

I want to raise this issue, and I hope the ministry will start wrapping its mind around it -- not so much trying to juggle funds this year, although there may well be a need for some small amounts of funding, but because I think it's something that deserves some attention in the next two or three years. I also recognize that a great responsibility falls on the community. They are going to have to come up with a plan, a vision and a strategy that they can sell to people within the ministry and to people within Tourism B.C., as there is this competition for money.

I wanted to take this opportunity to put these thoughts on the record in estimates and to say further that I do have a concern with Tourism B.C., inasmuch as the northern representative, I believe, comes from somewhere around 100 Mile House. For those of us in the north, that is considered a long day's drive south. Really, without trying to be too critical, for most northerners that simply isn't the north, from our perspective. I'm not sure that we can depend on that representative to carry the argument for us. Perhaps the minister has other thoughts on the issue.

Hon. I. Waddell: Let me just correct the member a little bit. We have Pat Corbett -- the former chair -- from 100 Mile House, Judith Parkin from Prince Rupert and Sue Popesku from Fort St. John on the board.

Here's what I think I could do for that project and for the hon. member. First of all, I believe there's a meeting of ministers of tourism in Hamilton, Ontario -- where else? I think it's scheduled by the federal minister. The ministers from across the country meet, and if we ever get out of the House and I can get there, I will be able to put that forward -- and I will -- to the minister from the Yukon and the minister responsible for tourism in Alberta. Second, I hope to go to a meeting later this month of PNWER -- Pacific NorthWest Economic Region. It's in Portland, Oregon, and Alaska should be there. I will put it forward to the Alaskans there. I'm going to do something on tourism.

[ Page 8211 ]

J. Weisgerber: Well, my apologies to Sue Popesku. I honestly didn't realize. . . . I knew Pat Corbett was on Tourism B.C. I didn't realize Sue was. She certainly would be an able spokesperson. We'll pass some information through her as well.

Yeah, I think that there are. . . . I am very pleased to hear the minister's undertaking to raise this with Canadian tourism ministers and also in the Pacific Northwest. Those are both very good venues for this issue to be raised in.

Those people who have done some of the groundwork in the community recognize a role not only for the provinces, the states and the territories that I outlined but also for the federal government. This is a major national tourism asset. But we also believe that the American army, the American corps of engineers and perhaps even some of the big military universities would have an interest in preserving this history around the Alaska Highway. I watch now as ministers of highways -- not only here in British Columbia but around the country -- get up and grandly announce the construction of three kilometres of road as the annual contribution to some new transportation initiative or, on a truly grand day, putting in an extra lane on Highway 1 coming from the Fraser Valley over the next five or ten years. When you take that and mirror it against a group of people going into a virtually trackless wilderness and building a highway in nine months in the most hostile environment in the world. . . . The true significance of what was achieved in that war environment -- that crisis environment -- really shows us what we can do when we have to do it, and it is something that I believe we can take advantage of.

I haven't anything further to pursue on this issue, but I do commend the minister for his undertaking. I will attempt to make sure that those people who are proponents have an opportunity to meet directly with the minister at some time in the not too distant future so that they can show the minister the extent of the vision that they have. I think I'm a poor spokesman for the vision that they have, which is a very real one.

J. Dalton: I have some questions for the minister dealing with the Heritage Conservation Act. Firstly, I'd like to deal with two or three sections in the act itself and then deal with some actual examples where things don't seem to be working out there in the real world. Maybe it's contrary to what this act was intended to do, but I'll have to see.

Section 3, under the heading "Provincial heritage register," says that the minister may establish and maintain one or more registries.

The Chair: Member, I'd just like to interrupt for a moment, if you'd just take your seat. Legislation is not up for debate in Committee of Supply.

J. Dalton: Well, I seek your direction, hon. Chair. I'm using actual examples that come from the Heritage Conservation Act. I fail to understand how I'm going to be able to deliver my question to the minister without first having some understanding of the legislation that pertains to his ministry.

The Chair: Member, you could rephrase the question.

J. Dalton: Is the Chair saying that I cannot ask for an interpretation of one or two sections of the act that pertain to the actual examples that I will be following up with?

The Chair: Member, if you can tie your questions into the actual estimates that we are debating right now without referring to specific sections in the legislation, then you may go right ahead and ask your questions.

J. Dalton: Thank you. Can the minister tell us if there is more than one provincial registry kept for provincial heritage sites, provincial heritage objects and other prescribed heritage properties that are under his ministry?

Hon. I. Waddell: I'm informed that there are four databases and one registry.

J. Dalton: Can the minister assist the committee by advising us where these databases would be found and where these things would actually be recorded? Quite frankly -- I'm sure the minister and his officials are aware of this -- there is a huge state of confusion out there. When I say "out there," I'm talking about the province of British Columbia, not just bits and pieces of it. People don't know where to search for this material. When they're applying for business permits or building permits or highway sites or whatever it may be, it's very difficult for people to conduct their business -- either private or other types of business -- without the minister being able to tell us where this sort of information can be found.

Hon. I. Waddell: I'm informed that four databases are in the ministry, in the archeological branch. I might tell the hon. member that this is not a new act; the act's been going since 1962. There has been a lot of property transactions and growth in the province since then, and they've managed to do it within the confines of this act. So it's not exactly new.

J. Dalton: I certainly wouldn't debate the heritage -- if you like that term -- or the chronological order of the act. That isn't the issue. The issue is that there's a lot of confusion currently about the way this act is administered. Can the minister advise us how the public would access the information found in these databases and in the registry?

Hon. I. Waddell: I'm informed that it's accessible to the public by request throughout normal business hours in the ministry. We get 800 inquiries per year on average. I don't agree with the member that there's confusion out there with respect to this. Could the member be specific?

J. Dalton: Fine, then I'll take up the challenge. Last week I had one of my assistants call the city of Victoria to see what knowledge or information they had in their municipal records about heritage sites, objects and other things that are caught by the ministry. The official who responded to that question said they had no knowledge of any records whatsoever in the city of Victoria.

They were then advised -- and I'm sure my colleague from Oak Bay-Gordon Head will be raising a particular exam-

[ Page 8212 ]

[3:00]

Hon. I. Waddell: The ministry is trying to work with municipalities, and they worked together on producing a brochure on how to access the site -- the registry. They sent 8,500 brochures to 178 municipalities and regional districts. They held three information meetings, made six media contacts, and received and processed information requests from municipalities to update their records. So they are working with the municipalities on this issue. I mean, sometimes they are not easy issues in terms of cases which. . . . I'm sure the member knows that it's not an easy issue. He's had some personal experience with the issue and got rather overwrought about it.

There are requirements that if you find bones -- for example, when you're going to do something with your property -- you have to report it. If the coroner decides that it's ancient bone, if you like, then there has to be an inspection. If it is an archaeological site, then there have to be some measures taken, and there are some obligations on property owners. That's in the act, and it has been in the act for a long time.

J. Dalton: That is certainly true; it has been in the act for a long time. But I think, quite frankly -- and we're seeing it. . . . Going back to the Craig Bay example up in Parksville, which we may get around to later, it's fairly recent that these things are actually coming to light.

The minister advised the committee about perhaps contacting your regional district or municipality if you're planning a building expansion or whatever it may be. That isn't going to be very helpful, because the minister also said that if you happen to find bones. . . . By the way, hon. Chair, I have never been personally involved in anything to do with the finding or disposition of bones or things on private property. It is certainly on the public record that my wife and in-laws are the owners of property affected, but it has nothing to do with me.

Can the minister advise us -- and this is from an actual letter sent by one of his officials from the archaeological branch, but with a previous minister -- whether a piece of property outside a municipal boundary which the property owner is advised is an archaeological site, recorded or not, would be subject to the provisions of the Heritage Conservation Act? Can the minister advise us how a property owner is supposed to comply with an act when there is nothing recorded and nothing has been found?

Hon. I. Waddell: I'm having a little problem here, because the member says that he has not been involved and that it's nothing to do with him. But surely this is an MLA who wrote letters and made several phone calls -- some of them fairly abusive -- to government officials on behalf of his wife Leah and father-in-law, Neal McDonald, with respect to the ownership of an 8,000-acre ranch near Williams Lake where eight skeletons, including that of a young child, were discovered. I was looking through some of the press clippings, and I have a quote from the leader of his party, who said in the Province on June 26: "We will be exploring these questions, but it will be done through our Aboriginal Affairs critic."

Interjections.

The Chair: Order, members.

Hon. I. Waddell: Well, the critic was just fired by his leader over this issue. His leader is quoted in the paper as saying that he will get someone else to deal with it. The member just told the committee that he wasn't involved in this in any way. Now, I'm in a bit of a quandary. Do I follow the directions of his leader, or do I just deal with this issue?

Interjections.

The Chair: Order, members.

R. Thorpe: Hon. Chair, earlier you gave guidance that we are to ask questions pertaining to estimates and that we were to receive answers on the estimates. I would ask you: is that same guidance required for the minister?

The Chair: Members, I'll go back to previously, when we discussed the aspect of whether or not the minister can be directed by the Chair to answer a question. The Chair cannot direct a minister to answer a question. A question has been asked by the member, and the minister is in fact answering that question. So we're going to continue asking questions and answering questions, according to the estimates process.

R. Thorpe: I would just like to make a few comments as the official opposition critic responsible for this ministry.

For some reason this minister continues day after day to try to pick fights and insult people. I want to suggest to you, hon. Chair, that we can do that, and we can be here for a month, if that's what this hon. minister wants to do. We can let certain people get up and start talking -- and we will. Or we can try to be professional. It may be a stretch in some instances for people to try to be professional, but I think we should all accept that challenge.

I believe that the hon. member from Vancouver has asked a very legitimate question. If this minister is going to continue with insults, then we are going to be here for a very, very long time. The meeting in Hamilton may be in 1999. . . .

Hon. Chair, I would ask through you that the minister try to answer the questions without going down into the gutter and insulting people, or we're going to be here for a long time.

Hon. I. Waddell: I don't think that I'm going down in the gutter. I'm prepared to sit and answer the questions. If the member wants to ask me those questions, I'll answer him; that's my job. I just want to be careful. I read the press clippings like anybody else. I read the statements of the Leader of the Opposition saying that this member wasn't

[ Page 8213 ]

With respect to threats about sitting here, that doesn't bother me. I'll answer the questions if they're legitimate questions and if they're on particular issues.

R. Thorpe: First of all, this minister knows the facts very well and once again chooses to take cheap shots -- synonymous with federal politics. Of course, we know that he's a former federal NDP member, and that's why he would take such cheap shots. This issue has been dealt with by the conflict-of-interest commissioner; and it's all been cleared. I would suggest to this member that he worry about the leadership within his own party and within his own caucus, because they are adrift at sea.

The Chair: Member, we are debating the estimates for the Ministry of Small Business, Tourism and Culture.

I recognize the member for West Vancouver-Capilano -- on the estimates.

J. Dalton: I will put the question again. When a piece of property is outside the municipal boundary -- it's in a regional district, but it's hardly in the sort of area where anyone's going to be able to access regional or any other records, if they exist -- how can a property owner deal with a so-called archaeological site which is not regarded. . . ? Nothing has been found on it. They were conducting a lawful activity on private property. The ministry stepped in and said that an impact assessment should be conducted on a piece of bare private land outside of the municipal boundary. There were no records anywhere -- nothing in the land title office. How can people comply with a request from a ministry official that has no basis? Quite frankly, I think it is an unwarranted intrusion on private property rights. One thing is certain: the official opposition will always stand in favour of private property rights. I don't know where the government stands on that issue, but I have my suspicions.

Hon. I. Waddell: Could the hon. member tell me what property he is referring to?

J. Dalton: I will not advise the minister of something that he doesn't care to comment on. I've asked him a particular question coming out of an issue. He's obviously evading the answer, hon. Chair, so I will move on to another point.

I received a "Heritage Branch Business Plan 5" -- it has no date on it. It is five pages in length. Can the minister advise this committee when this document was produced?

Hon. I. Waddell: If the hon. member would pass me the document, I could have a look at it and I could tell him. I haven't seen the document, so I'm not quite sure what it's. . . .

J. Dalton: Well, I don't mind sharing with him. I have a few of my editorial notes and things on it.

I have my suspicions that this document was produced in a rather, shall we say, timely fashion in the light of things that have been happening in Oak Bay and on the Pat Bay Highway. There's the Craig Bay issue, which I believe another MLA will be raising later in this committee. There are certainly things on record up in the Cariboo, in the Chilcotin, in Oliver and in Williams Lake.

Here's another one for the minister to ponder. Just recently, in a subdivision in Williams Lake, the remains of a woman and young child were found. They were uncovered during expansion activity, and naturally a coroner and others were involved. The Sugar Cane Indian band in the area ordered an archaeological study of the remains, and I understand that they submitted that bill to the Williams Lake municipality for payment. Can the minister comment as to whether a municipality, in circumstances like that, would be expected to pay the bill for an assessment that it didn't order?

Hon. I. Waddell: Although the member wasn't specific, I believe this has to do with a trailer court in that area in which there was. . . . Like I said before, this is what happens. The bones are uncovered, and then the coroner says that they're ancient bones. An archaeologist is looking at it, and I believe there are still negotiations with the band to try -- as they try to do in these matters, which the ministry tries to expedite -- to solve problems, not make problems more difficult.

There is an act, and you have to obey the act. The act has long dealt with this. We have a scheme that's been brought in, which is now over 30 years old. In this case, I'm informed that the developer will be paying for the archaeological work.

[3:15]

[E. Conroy in the chair.]

The issue there, of course, is that Sylvia Miller was being expected to pay for the assessment and archeological studies on her property. She didn't author this problem; she simply had a lawful building permit from the municipality. The branch was looking to her to pay for the study. She told Millennia Research, "You're no longer welcome on my property," so they're gone. Now the question is: who's going to pay for the study? In this letter of January 2, the branch is on record that they're not in a position to pay for it, so I presume they're expecting Sylvia Miller to pay for it.

I keep in touch with Sylvia Miller, and she told me not more than a week ago -- I believe this is an accurate summary

[ Page 8214 ]

Hon. I. Waddell: The member has just given my answer. I was going to say that after some difficulty the province and the landowner have committed to a written cost-share agreement that we hope will see the issue brought to a successful conclusion.

As I said before, and I'll repeat this: these are not easy issues. We have an act going back to 1962 which specifies that if archeological remains are found on your own private property, you have to go through certain things. Nobody's out there attacking private property. This is the theme of the act, probably brought in by a Social Credit government. We don't know where the bones are. That's why this system that appears in the act is set out. It's not an attack on private property; it just happens that sometimes bones are going to be found on private property.

At the beginning, this lady did not cooperate. She could have built her hot tub in some different spot; she could have done some other things. There were discussions, and it was difficult. I'm happy to see that people have resolved it.

The ministry tries as best it can to try and mediate, to find ways that it can help private citizens. We're not in there to fight private citizens. We're in there to work cooperatively to meet the requirements of the act, which are fairly onerous, and to preserve archeological remains in the province, which I think all parties -- and, I hope, the hon. member -- are committed to.

J. Dalton: Well, there's certainly one telling thing the minister said in his response: they don't know where the bones are. That's true, and obviously nobody is seeking to dig up bones.

But just on the subject of ancient remains. . . . In one area that I have some personal knowledge of -- up in the Halfmoon Bay area, north of Sechelt -- some bones were actually discovered on a neighbour's property up there, just down the street from my summer property. He was expanding in his back yard, and he actually found some human remains which turned out to be the property of the Sechelt Indian band. Their policy is that they come to the site and take the bones, and they give them a proper reburial on their band property.

Now, I'm not suggesting that the minister can dictate to the native bands in the province how to deal with the issue of bones as they appear, but there's one example where everyone's happy. There's no need for assessment, no need for an intrusion on private property rights, no need to interrupt a lawful building expansion or whatever else is happening on the private property. Everyone's a winner in that case.

It is true that Sylvia Miller was somewhat aggressive and probably continues to be to this day. I don't mind standing on my feet and saying that I'm aggressive when I need to be too. If you aren't aggressive in this world, quite frankly there are governments out there -- municipal, provincial, federal, whatever -- that will erode our property rights. As an MLA, and particularly as a property owner and taxpayer, I will not stand for that -- never will I stand for that. Sylvia Miller, God bless us, has been able to work out some agreement with the ministry.

Would the minister agree with this approach? On another piece of property -- my colleague the member for Oak Bay-Gordon Head will deal with the particular issue -- when a bill of $6,500 was being suggested on a piece of property in Oak Bay, one minister was quoted in the Times Colonist, Friday, December 19 last year, saying: "There are quite a few companies locally, though not dozens, who are capable of doing the job." He was talking about an archaeological assessment. The minister. . . . It's Milt Wright; it's in the paper; I'm not hiding anything here. Milt Wright goes on to say: "It was our recommendation to Mr. Vandermale that he get estimates -- that's plural -- and choose from among them." Does the minister agree with that sentiment?

Hon. I. Waddell: The answer is that it's up to the landowner to choose. The department can give the landowner advice on some ways to proceed. That's why we put out a pamphlet. I know the member's fighting somewhere -- perhaps in his own mind -- this battle for private property. If you look at the leaflet, you'll see there are fairly simple steps. Here's the act; here are your obligations. Step one: "Plan ahead before you dig." Here are some of the things that you should know. . . . "Find out if your property may contain precious artifacts from the past." Because there are some areas that can. . . . There's a site list and inventory. "Stop digging if you find something in the ground." Here's what you should do, and here's some points about the archaeological assessment and so on.

It talks about costs. It says: "There are costs associated with hiring an archaeologist if an assessment and plan for dealing with potential artifacts and human remains on your property is necessary. However, by taking early action, you can minimize further costs down the road." It goes on to say what the archaeological resources are.

So this is the way that the department is trying, in a cooperative way, to deal with an act that, as I've already said, has very heavy, quite onerous requirements. It was enacted long before I was minister. I want the department to continue to work with people to try and solve the problems on a case-by-case basis.

J. Dalton: Well, I'll just make some other, more generic remarks and then hand it over to some of my colleagues, because, quite frankly, we're obviously just spinning our wheels as far as trying to resolve the administrative difficulties that this act is presenting. I don't quarrel with the minister about the pedigree of the act. He wasn't around; I guess he was off in Ottawa or somewhere when this act first became the law of the province.

I don't quarrel with the preservation of heritage, hon. Chair. Obviously we have to preserve our environment and our heritage. The problem here. . . . Well, it's several-fold. Number one, there are no records. The city of Victoria has no records. Oak Bay started to wake up to this, because a constituent of my colleague the member for Oak Bay-Gordon Head got victimized -- not by the act as such but by the way it's administered. That's the problem. It's the way it's been administered and the inconsistency. So you have Sylvia Miller who has to fight for her property rights. Finally, the government caves in and says: "Fine. We'll pay the bill."

It is on record -- and I don't mind making this point -- that on the particular piece of property my wife and in-laws own, they were never even advised about what was going on down there. It was the government that hired the archaeological study. They paid for it, and that was the end of that.

Up at Craig Bay, it took three years and $7.777 million to resolve -- a large site, admittedly. It was three years of development time and almost $8 million in public money to get that one squared away.

[ Page 8215 ]

Just to conclude, the other problem is that there are so many pieces of property that may be potentially impacted by the Heritage Conservation Act. But how can people know whether it is or is not when there are no records and there's no knowledge? Who knows where the next site may pop up? If the government is saying to private property owners, "Well, before you dig a hole in the ground or plow a hayfield or put in a hot tub or a seawall," -- or any other thousands of other things that people will lawfully do with their property, or shopping centres in Oliver. . . . I can go on and on. We've got these things coming out of files that will choke a horse. How can people be expected to comply with the law of this province when there are no records, no knowledge?

Quite frankly, we have government officials who ride in saying, "Well, you're going to have to do it this way in this case, and we'll do it that way in that case over there," and there's total confusion and inconsistency. Quite frankly, I am fearful that the intent of this act that we are not discussing -- the Heritage Conservation Act -- will be destroyed or very severely eroded by the very fact that people now have specific knowledge from reading about it in newspapers or seeing it on television that if you find something in your back yard, the last thing you want to do is tell the government about it, because then they are going to hold you hostage for who knows how long or how many assessments will be required and how many government officials will be running around saying: "You should do this, that and the next thing."

They can't search anywhere; there's no land title records available. The minister has admitted. . . . He said, in a direct response to one of my questions, that they don't know where the bones are. Yet they're expecting private property owners to sort of magically discover. . . . "Oh well, you should know that there's probably a bone in that piece of property." Quite frankly, that is obviously not on.

Those are the points that I want to place on the record. I have done so, and I will hand over to one of my colleagues.

Hon. I. Waddell: Just before the member hands it over. . . . Look, the member talked about spinning wheels. I don't know whose wheels are spinning, but perhaps the member might look at this in a little more rational and calm way. There's an act. There are archaeological remains out there in this province. This province has a very rich history of indigenous cultures -- one of the richest in Canada and one of the richest in North America. That legacy is here with us today; it's a live legacy, with this beautiful art and the culture that's there.

[3:30]

I think that's rational policy. These officials are trying to do the best they can -- with a very difficult situation sometimes. I don't want to let it rest without saying that. The member obviously has some concerns about this; I don't know if they're personal or otherwise, but he's got some concerns. I urge him to have a look at the act. If he's not satisfied with the act, he's open to bring a private member's bill to amend the act. Those remarks should be on the record as well.

M. Coell: I'd like to follow up on the line of questions to the minister with regard to the administration of the act and offer some suggestions. Sylvia Miller's case is a typical one, I think, where you have a person who has permission by way of a permit from a municipality. They are in an area where the Tseycum first nation was -- and is at present. The act is enforced. The question I have for the minister is the timing of when remains are found -- or even the possibility of remains -- and when the person can go ahead and build the building or the sundeck. It strikes me that. . . . I'm pleased to see that the owner and the government have made a settlement, but that took almost a year and a half. To me, that's far too long -- it's not reasonable -- for decisions to have been made by the government. I wonder if the minister can comment on that.

Hon. I. Waddell: Well, I'm listening closely. The member's got a distinguished record. He's got experience in the municipal field, and he also has, if I might say so, a rational way of approaching matters. So I'm listening, if he's got any suggestions on this. I have a feeling that we still have to get the message out to people that this act exists and that there are obligations on owners if bones are found, and that by working together we can deal with these particular problems to sort them out.

I'm informed that Sylvia Miller was given permission to proceed within seven days of finding it, but she cancelled that. But that gets us back into this dispute. I don't want to get into the dispute with Sylvia Miller right now; they've had enough dispute on that. It seems to be on its way to being solved, and I will rein myself in from making any comments on that.

If the hon. member has any positive suggestions on the administration of this particular act, I'd be open to hearing from him -- short of hiring more staff.

M. Coell: I have some difference with the minister with regard to the comments made by my colleague with regard to property rights. I found them to be very rational.

I have a real concern that there's an unlimited time frame on this act. It really goes against common sense; it could go on for literally years before there is a resolution to problems. Whether there is a disagreement over the cost of the study, the amount of the study or the variance of the study, there needs to be some time frame so that people can get on with their lives and first nations people can get on with their lives and understand what's going to happen -- so everyone is working from the same songbook, is what I'm saying. I don't see that happening.

I see situations like this as very divisive in my community, and I suspect it's very divisive all over between first nations people and others. There need to be, I think, some time frames that everyone works to. I think that would solve the possibility for division and disagreement amongst people, and you need to set that out. I don't know whether the ministry has discussed that or whether it's willing to consider setting out time frames for appeals and for a tribunal to discuss or make arrangements for the type of study and the amount that an individual would pay.

[ Page 8216 ]

This bit on private property. . . . I notice that when the member for West Vancouver-Capilano wrote to my branch last June 20 about why a landowner who is minding his own business should do that -- engage an archaeological consultant. . . . Well, that's part of the act. It's not an attack on private property; it's part of the act. That's the scheme of the act. We differ there.

On the time frames, I'm prepared to look at that. If the member can suggest either an amendment or procedural changes, I would be open to that.

[E. Walsh in the chair.]

M. Coell: The act, as the minister has said, is old. It has been through many governments; it has been through changes in regulations. It has now come to a point where I think people are more aware of the act than they were.

It's also becoming very expensive for individuals, where it wasn't in the past. There were things taken into consideration in years gone by that now cost a lot of money. I think what we're seeing is that bills of $20,000, $30,000 and $40,000 for studies are, becoming commonplace. I realize that the Miller one was over $20,000 to start with.

That's going to have two effects, and it's why I say that I think it's going to create division between first nations people and others; and I think it will also cause heritage remains to be destroyed. I don't think anyone wants that. I know that when I spoke to Ms. Miller, she definitely didn't want to see anything destroyed. But she certainly didn't think that she should foot the bill for the $20,000, $30,000 or $40,000 for studies. I point that out to the minister because I think that this will become increasingly more. . . . As the province grows, and houses, malls and the like are built, this is going to become a problem that's going to create divisions in our community as a whole. I think it's something that he needs to look at.

The ministry needs to look at time frames, so that we're all playing from the same songbook, and at the costs. What are reasonable costs for people? I think that if we don't get a handle on that, you're going to see valuable historic treasures destroyed and ignored, as my colleague said. I don't think that's what anyone wants in this community. So those are two areas that I see.

It's because of the way that the act has grown and society has grown at the same time that these two problems are coming to a head. They're coming to a head in articles like you've seen here. So I would be interested to hear the minister's comments on compensation, on a reasonable level for a private property owner to pay. And is there a limit before a development on private property can take place?

Hon. I. Waddell: I'm listening carefully to what the hon. member is saying, because, as I indicated, of my view about the hon. member and where he comes from.

I'm told that we've got to be a little bit careful that we don't take this out of context by taking a few bad cases. You know, a few bad cases make bad law. There are several hundred cases a year where bones are found. They're dealt with, and it goes on; it's solved -- several hundred.

I'm told that in Miller's case there was some problem in 1995, and I think the cost was about $1,500. The average cost is $3,000. But I'm listening to what the member said. If costs get more than that, it could put the property owner in a difficult spot. It would put our ministry in a difficult spot; we don't have unlimited funds. We don't even have a mandate, quite frankly, to go out and compensate. That's not the scheme of the act. So I will listen to that, look at that and monitor it closely.

M. Coell: I appreciate that, because I see this as an emerging problem -- and it's highlighted by a number of cases that have been brought up -- in the coming years. If the ministry doesn't change how this act works and functions, and the costs involved, I see some real problems. I wanted to get that on the record.

I. Chong: I think the minister is quite aware that I too will be raising an issue -- in particular, of a constituent of mine in Oak Bay-Gordon Head.

But before I make my comments and ask my questions, I want to just sort of clarify for the record that the member for. . . . The minister made a comment to the member for West Vancouver-Capilano about being irrational. I think that's an unfair comment, given that he asked the question with a view to receiving an answer. You know, when the minister is not able to provide that answer, then so be it. He should just state that. I think it was unfair of the minister to suggest that the member was being irrational because he was just trying to get at the heart of things -- as I will now attempt to do in the particular case that I have.

I mentioned last week, when we were supposed to be discussing the heritage branch, that I had in fact written a letter to the minister's predecessor on December 31 -- New Year's Eve -- 1997. I was still working on that day, because this issue was emerging and was very important to a constituent of mine. I hope that the minister has had time to review the letter and look at some of the concerns I raised. I do have to compliment the ministry. At that time, they did arrange for a briefing with me and some members of the archaeology branch so that we could review the points I made in that letter. However, I have to state that that briefing, although it provided a bit more clarification, certainly did not satisfy, I would admit, the areas of concern that I have. I'm hoping that the minister can do that at this time.

First, I would like to refer back to some comments that the minister made in terms of impact assessment studies and what has to occur. Firstly, can the minister advise: when a development takes place on entirely bare land -- before a subdivision takes place, perhaps -- is the entire site to be assessed if it is considered a protected site or a heritage site? Once that entire site is assessed, does that end any future assessments?

Hon. I. Waddell: First of all, with respect to the previous member -- the flamboyant member from West Vancouver, Howe Sound -- I think I did provide the answers; I don't think that I didn't provide the answers. You can understand that there's a little difficulty. I mean, he wrote some tough things to my officials, and I have to defend my officials. I get

[ Page 8217 ]

With respect to the site, is the entire site assessed? The answer is yes, the whole site is assessed. Recommendations are made with respect to anything that's found.

[3:45]

With respect to the question that I asked about the entire site being assessed, my supplemental to that was: once that has been done, are there further assessments, or are the recommendations such that there could possibly be further assessments? What I'm talking about here is this. You have a subdivision or a piece of land that's ten or 12 acres, which did happen in parts of Gordon Head on one of the last parcels of land that was subdivided. Indeed, there was an environmental impact study. I don't know if there was an archaeological impact assessment done, but I'm hoping that it was done, because houses are now being built there. If the entire site is assessed prior to any homes being built, prior to any development taking place, does that preclude that site from ever having another impact assessment study done again? And what can be done to preclude that from happening?

I see some ministry heads shaking. We do want to reduce government red tape and regulation. When someone sees a development taking place, I would expect that there is an expectation from the people who are going to be taking out building permits that everything has been done and that they don't have to look any further. Is there anything that can be done to preclude double regulation on a piece of property?

Hon. I. Waddell: The answer is no. It's just the nature of the beast. I see what the member is getting at. You want some guarantee that your site is not going to be. . .they're not going to come back later. The fact is that you could decide that you're going to put in a pool, and you find some bones. They could be important. They could fall within the purview of the act, and then the act comes in. It would be simpler if we could say: "All right, we've done an assessment. That's it. You can do anything you like." We hope that the assessment will give people an opinion, but it's still possible that some bones could be found later on and the act would kick in.

I. Chong: I do hear what the minister is saying, and I'm not suggesting that nothing can be done when bones are found. What I am recommending is that the minister consider that when an impact assessment is done on an entire site and there is reason to believe that the site is relatively clear of archaeological artifacts, the property owners who come in once the land is subdivided will have some assurance that if in fact they come across some bones. . . . Yes, that would fall under the rules of the Heritage Conservation Act. But there has to be some assurance that we don't have -- I wouldn't say a witch-hunt -- people suggesting that just because a home is built on a protected or archaeological site, they would automatically become subject to an impact study when they do decide to change or alter their landscape.

I'm concerned, because as you know, large pockets of this capital region are sitting on first nations land. I believe this building, this precinct, is situated on first nations land. We have to be able to deal with this in a fair way with our constituents, as I know the minister would agree. The difficulty I have, and that the members for Saanich North and the Islands and West Vancouver-Capilano have, is that when our constituents come to us, we can't give them any assurance. We can't say that they're precluded from any further impact studies, that they can't be protected from exorbitant costs. There is no limit to liability.

These are all issues I raised in my letter and spoke about to ministry staff. That is the problem we have, and that is why there appears to be an attack on private property owners from that perspective, whether or not there actually is. When they are looking at changing their landscaping or making a renovation of any sort, everything is usually done with a due diligence process. They get their building permits. They check things out at the land titles office. They do everything possible short of coming to the ministry, because they aren't aware that they should be checking out whether there is a protected-sites flag on their land. This is the problem we have, and we have to make it easier for private property owners to know that this exists. We have to make it easier for people's lives.

This is a part of government regulation and red tape, and if this minister is committed to reducing government regulation and red tape, I would suggest that there is a lot to look at in terms of the Heritage Conservation Act. We are not suggesting -- and I want to make this very clear on the record -- that we don't support the protection of artifacts and safeguarding those kinds of things. Given my background, I certainly do believe in preserving the past and the history of cultures. The problem is that now that it has come to light that there are problems and costs involved, when people find these things they are less prone to contact the ministry office. We have to make sure that there aren't exorbitant costs and penalties imposed and that people feel that they can in fact offer this information to the ministry without having some unknown liability looming in the background. Can the minister look at the prospect of an impact study being done on an undeveloped piece of land so that when it becomes developed there is some limitation as to what takes place, without harming the safe procurement of artifacts? I would like to know if the minister can possibly look at that area.

Hon. I. Waddell: I'm listening closely to what the member says. I think it is a complex issue, because we don't know where the bones are; we don't know that. We try. We've put a process in place, and we're trying to inform the public of the process. We're open and will listen to suggestions for finding better means of doing that. It's been going on for quite a period. There are some cases coming to light now. As the member for Saanich North and the Islands said about the province growing and things growing. . . . It raises further questions.

Let me just summarize, then: complex problem, process in place. It won't be perfect. We think that we've got the best process that we can. We're open for changes in the process if we can't. . . . It's not an attack on private property, and I think we should rule that out. We should stick to the facts. If there are changes to the process, we'll make the changes to the process.

I. Chong: I recognize that it's difficult to establish where the bones are. No one can ever know, because I guess soil shifts as well. Along with that, if you've living along a coastline, it could move from your property to your neighbour's property, and they aren't aware of it. When the minister is talking about looking at process and looking at possible

[ Page 8218 ]

If there are in fact artifacts which are eventually confiscated, there are values there which the owners obviously do not have the right to retain. Those then go to the museum or wherever they go; they could be returned to some native band. But if they are taken and placed in a museum and you receive value for them which you then insure, the property owner has lost out in both cases. He has basically paid a donation, as far as I'm concerned, to the province, and yet has not received any kind of fairness and equity of treatment. I am looking for some form of accountability, and I hope the minister understands that, hon. Chair -- that if there is to be a cost, the cost be somehow limited or tied into some formula that costs not exceed a certain value or just not be so unreasonable. We heard about the case in Saanich North and the Islands -- $20,000, $30,000, $40,000. Who knows what it would have escalated to? At what point does the constituent and the ministry's office step in and say: "Well, just a minute. This is way too much. We have to put the brakes on this"? How high does it have to go before we acknowledge that there's something wrong with the process? If the minister has any thoughts on that, I would appreciate it.

Hon. I. Waddell: A good question. First of all, I should say that most of the cases are not problems. They are able to solve them and deal with them. I've already said that. Secondly, sometimes compromises can be made. For example, a homeowner may be digging a swimming pool in their back yard, and it may be that because of bones and the archaeological value, or disturbing gravesites and so on, they can put a deck with a hot tub in. That's kind of an example that. . . . There has to be a little bit of give and take there.

But as to the major issue, I would consider. . . . I would look at that -- limiting liability -- if you get some cases that are out of line. It seems to me that that's sort of happening with some agreements with the ministry and the odd case where the homeowner really seems penalized. That, of course, means that society as a whole would have to pay -- that means the taxpayer. That means, of course, more taxes and things like that. So one has to be careful about committing the treasury to a lot more expenses.

If the hon. member's in favour of that. . . . If she and her party think that I should look at bringing in some amendments to limit liability so that the government will have to pick up some of the costs, and that that should be put in law, then she should let me know -- if that's the position.

I. Chong: I'm afraid that the minister has misunderstood my comments. I've not suggested that we expend more government dollars. I think the minister is quite aware that on this side of the House we've always looked at being much more frugal about how those dollars are spent and that we have to be accountable for how those dollars are spent. What I am suggesting, though -- because I don't know just what kind of revenue is generated through the ministry office and where those dollars go -- is that if there are not very many impact studies being done and we have staff on hand, are we therefore spending our dollars waiting for something to happen? I'm sure the minister, if he is looking to provide limited liability, can look within the ministry to see where there are some cost savings. That is, perhaps, the way we should be going here.

What I am suggesting is that at some point, when a cost escalates to such a level that it becomes that onerous to a homeowner, surely we have to recognize that government was not put in place to get in the way of homeowners, to provide that kind of difficulty. In fact, if there is such a cost that is being borne by the homeowner, then there must be artifacts that are being retrieved. If there are artifacts being retrieved, then there is value. And if there is value there and if the minister is not able to look at compensating in terms of limited liability and a cost-sharing agreement, then would that homeowner not be entitled to say that he made a donation to the Crown and thereby be relieved of some income tax liability? In a roundabout way, that's what has happened. If somebody walked in and said, "I have these artifacts in my basement, and it wasn't from the ground," and he didn't tell you that he had dug it up and kept it for five years and came along and donated them to a museum, there'd be a donation credit he'd be able to receive.

[4:00]

As the member for West Vancouver-Capilano mentioned earlier, the city of Victoria is apparently not aware of what is going on, because my assistant called them in the last week, knowing that the topic of heritage sites was coming up. The city of Victoria has a lot of development and certainly sits on a lot of first nations land. It is not aware that they must be checking into this area. They made a frantic phone call to the municipality of Oak Bay, knowing that I had been involved with my constituent, Mr. Vandermale, on The Esplanade. They knew that Oak Bay was very aware of this, so they asked to be brought up to speed very quickly. Here we have officials in the developing and permitting areas of the city of Victoria who aren't even aware that there is something or somewhere they should be going to check. They are very much concerned about liability and exposure.

As the minister stated earlier, they have issued brochures, and regional districts have all been informed. I'd like to know how that has been relayed to all these municipalities and regional districts, because right here in the capital region they aren't aware of what's going on.

Hon. I. Waddell: I'm informed that as recently as March 31, the ministry wrote to all municipalities about these issues. As I said, they've developed a public brochure and requested that local governments make it available to the general public -- more specifically, the applicants for building permits. They're discussing with the UBCM and regional municipal associations what opportunities would best present themselves to discuss these issues with building permit inspectors, public works engineers and municipal planners,. The ministry is endeavouring to do that. If more needs to be done, then the ministry will do more.

I wonder if it would be possible to take a five-minute break now.

[ Page 8219 ]

[E. Walsh in the chair.]

I. Chong: Just before we recessed, we were speaking about the establishment of a registry. I just had time to literally run down to my office and back, and lo and behold, there was a message that does deal with the archaeology branch.

I understand that representatives of the Association of Vancouver Island Municipalities -- AVIM -- did receive a briefing at a meeting recently from a staff person from the ministry. It was made known at that time that there were a lot of municipalities that perhaps weren't aware of protected sites within their boundaries. It was even more strange to learn that many of the municipalities have not received any information from the heritage branch in regard to property within their boundaries which falls under protected sites. They were curious because Oak Bay was the one municipality that was able to say that it has received information, primarily due to the case that we had, as I said earlier, with my constituent Mr. Vandermale. As a result of that, Oak Bay was very progressive in getting some information. But a recent meeting that they had with the ministry staff -- I don't know whether it was a month ago or a few weeks ago -- identified that other municipalities aren't aware that there are protected sites within their boundaries. That's one of the reasons why, when my assistant spoke to the city of Victoria representatives last Thursday, they had indicated that they weren't aware of protected sites.

Obviously there is a problem of miscommunication of some sort. I note that the minister stated earlier that 178 brochures have been sent out. Well, I hope that they didn't just get sent out and put in somebody's in-out basket without some reference being made to the importance of this, because as I said, there is a problem with liability and exposure on the part of the municipalities and regional districts. Something should be done, perhaps through the direction of this minister, to ensure that municipalities do pay attention to this. It is a very important issue; I agree with the minister. If 178 brochures were sent out and we still have municipalities, in particular in this region where I represent a constituency, that are not aware of this, then we're not doing our job. So if the minister has any opportunity to pursue this, I would appreciate his doing that. If he would like to make some comment. . . . If he will do so, and then I'll ask another question.

Hon. I. Waddell: I can tell her that we're writing. . . . There are actually 178 locations; there were 8,500 brochures. We're meeting with the municipalities -- that's what that meeting was about -- and we're working on cooperating with them. I'll make sure that that information gets out to them.

I. Chong: This is where we have some constructive solutions, and I certainly appreciate that.

The minister stated earlier as well that the letter was sent out on March 31. I wonder if the minister can provide us with a copy of the letter that was sent to the municipalities, the regional districts -- a distribution list -- so that we can inform all members in our caucus that their municipalities have been covered off -- just to make sure that we do that cross-reference as well. Is the minister able to provide a copy of the standard letter and the distribution list?

Hon. I. Waddell: Yes and yes.

I. Chong: Before I leave the area of costs. . . . As the minister is aware, in the particular case that I was dealing with in Oak Bay -- Mr. Vandermale, who lived at 2422 The Esplanade -- the costs that were borne by him amounted to about $6,500. It's not a lot in the scheme of things, compared to Mrs. Miller in Central Saanich, but nonetheless, it was a fairly costly amount at the time he was preparing for renovations to his home. It wasn't just the financial costs that Mr. Vandermale had to bear; unfortunately, it put him and his wife under severe stress. I have to tell the minister: they were calling us right up until New Year's Eve, and that is the reason we sent out the letter. They were very concerned about this.

But in terms of the financial costs, Mr. Vandermale, being very aggressive in his own right, had contacted the ombudsman's office to find out whether he could receive any form of redress from the municipality or the province. He has been advised, although not in a formal manner, that the province would certainly not be providing any compensation to him and that he would have to seek that from the municipality. The other difficulty is that when people are put into this kind of situation, they are not sure who they should be approaching: a municipality or the province. There is confusion and time wasted as to who they should seek out first. I'm wondering, because the minister mentioned earlier that a cost-share agreement had been reached with Mrs. Miller, what the criteria are under which a person can apply to have a cost-share agreement. Is there a tribunal and appeal process that someone can approach to see whether their circumstances of financial hardship would allow them to reach a cost-share agreement?

[4:15]

I. Chong: I thank the minister for his answer. However, the minister hasn't answered the other portion of my question. I wonder if he can provide clarification on it. Is there an appeal or tribunal board? Or when these are specific cost-share agreements, do they just occur and are dealt with by ministry staff?

Hon. I. Waddell: I'm informed that there is no appeal process. It is handled in the ministry.

Interjection.

Hon. I. Waddell: I want to be clear: there is no appeal board. That's what I mean by process. It is handled within the ministry.

I. Chong: Perhaps the minister will consider whether there could be some sort of volunteer appeal board or tribunal that could hear some people and look at areas where financial costs could be mitigated. That's just a suggestion. I don't know whether that would work or not. Obviously we have people who want a sympathetic place to go, and if something were at least available where a board could explain things to people, maybe that would reduce the amount of stress that constituents go through -- as opposed to coming to an MLA's

[ Page 8220 ]

I just have one last area of questioning. I came across it quite by accident and wondered if the minister would comment. As I understand it, St. Ann's Academy, which is owned by the Provincial Capital Commission -- or now BCBC; I'm trying to follow these things -- is undergoing some work. I saw the sign posted there, and I saw some dirt being dug up. I wonder whether anyone in the ministry has been contacted as to the process that they must follow -- because I understand that is on a protected site -- in terms of having an archaeological impact assessment done. This is Crown land in a sense -- or land owned by the province -- so it would only be fair, I guess, when taxpayers are looking at those instances, that government lands be treated the same way that taxpayers are when it comes to the Heritage Conservation Act. Is the minister able to shed some light on that particular project?

Hon. I. Waddell: Let me go back to the comments in the first question about the need for some sort of appeal. I consider myself a fair guy; others might not. I've spent most of my career advocating for people and seeing that justice is done. So I'm listening carefully to what the member is saying. I can understand anxiety and what it's like being an MP or an MLA advocating for people who come to your office.

With respect to St. Ann's Academy, of course, the government should be following the processes that private individuals follow. Even if it's not a matter of lots, it's just right to do that. I'm told that the branch worked with the developer, which was the government -- the Provincial Capital Commission. They have done an archaeological study, and they had to get a permit.

I. Chong: On the minister's comment, I would have to state that as MLAs we are all advocates. That's part of our job serving the public.

Back to St. Ann's Academy. I did have my staff contact. . . . I can't say who he did contact, but I presume it was ministry staff because when I noticed this about two weeks ago as I drove home and saw the sign, it just struck me as odd. That's why I had the inquiry made. At the time my staff called -- as I say, it was not more than two weeks ago -- his response was that all the senior bureaucrats at BCBC or. . . . I'm not sure whether they were ministry staff, but they didn't know anything about heritage property but only about heritage buildings. So again, even among interministerial staff there is confusion. They were looking at the fact that this is a heritage building but it isn't a heritage property. . .

Hon. I. Waddell: Or on a heritage site.

I. Chong: . . .or on a heritage site. So I'm surprised to hear that an impact study in fact was conducted and that permits were taken out, because at the time we made the call not more than two weeks ago, no one knew that anything had to be done. I'm sure that everybody went sort of frantic right after the call was made to make sure that everything was in place.

This is perhaps part of the problem as well. People here in Victoria, in the capital region, look at heritage buildings because we are in such a mind-set to preserve heritage buildings. But we often neglect or ignore or just don't pay attention to the fact that heritage sites, heritage land and heritage property fall under the Heritage Conservation Act. Again, something I want to pass on to the minister is that this message has to go out if we truly believe in the preservation of heritage properties. I am very curious whether that impact study had been done, because that had not been my assistant's impression a mere two weeks ago. If everything has taken place, then I'm certainly appreciative that they were under the same rules and regulations that all property owners are.

Hon. I. Waddell: I think those are excellent observations. Vis-à-vis the general knowledge of the act and getting the message out, I'm informed that there's more to it: that there are heritage buildings and heritage sites -- and a Heritage Conservation Act. There's a difference, and I agree with her there.

With respect to the particular letter, I've already answered your question. But I'll endeavour to get you further information on that and get back to you within a short period.

I. Chong: Within a short period is a little difficult to define, so I'm hoping that it's before the end of the estimates, perhaps, in case I have to come back in. Perhaps the minister could provide a copy of the impact study or the permit that was done so that I can get an idea of just what happens when it involves Crown land, if that's not considered confidential information.

Hon. I. Waddell: The member's persistent, and I'll provide her with as much as I can on that as quickly as I can. I know what she's looking for, and I'll get her the information.

I. Chong: Thank you. That's not to suggest that I didn't trust that it was done. It would perhaps provide a bit more insight on my part in understanding the requirements that others have to undergo.

I don't have very many other questions, but I just realized that there was a very important point I did want to raise at this juncture, and that has to do with the liaisoning with other ministries. This ministry does have something in place now -- it didn't seem to last fall -- in terms of other ministries that provide information to people with property. I'm thinking in particular of the land title branch of the Ministry of the Attorney General and in the Municipal Affairs ministry -- although I'm not sure where Housing is now -- the consumer home purchase information.

What brought this to light last fall as well was the fact that when this case came to us in the first part of December, we had received a book from the Ministry of Municipal Affairs and Housing two weeks prior to that about what to do when you're buying your first home. Nowhere contained within that booklet was any reference made to protected sites, and I did raise this with ministry staff. I don't know what has happened in the time since I had my briefing in January -- whether they have made a movement toward ensuring that enough interministerial discussions take place. Certainly Municipal Affairs should be involved -- again, I'm presuming that Housing is still there; if not, I'll ask the minister's indulgence as to where it may be -- and also the Ministry of the Attorney General and the land titles branch, and some reference should be made at some point so that homeowners who, in good faith, try to check everything out and get permits, can do everything possible to mitigate future costs on their own part. If those discussions are ongoing or are to take place, I would appreciate the minister giving me an update as to where that may be right now.

[ Page 8221 ]

That's a new word: "liaisoning" with other ministries. I congratulate the member on this new word; it's the first time I've heard that.

I. Chong: I apologize; I should have said "liaising." The hon. member for Delta North corrected me. I don't usually make those faux pas, but we're all human.

The other area that requires some discussion is the B.C. Assessment Authority. I don't expect that house values would decline as a result of protected heritage sites, but if in fact there was a potential for significant changes, perhaps the ministry would be able to provide documentation to the homeowner after a site is reviewed. That may have some impact on the assessment of a property.

There are some who take the view that, in fact, values can go down. Certainly, when Mr. Vandermale was having his renovations, all the homeowners on that avenue were concerned that the values of their property would decline. They were concerned that they couldn't do much in terms of renovation or landscaping.

I don't want to agree or disagree on whether there would be a substantial change in values but just to bring to the attention of the minister that if in fact there is, the B.C. Assessment Authority should also be made aware, so that if somebody is appealing their assessment value, they can do so on the grounds of the Heritage Conservation Act, and they are aware of what it can do to property values.

With that, I've concluded my comments and questions. I want to thank the minister for being receptive to some ideas and to thank the ministry staff -- who have been helpful in the past and, I hope, will continue to be helpful in the future.

R. Thorpe: Could the minister advise if this branch had a strategic business plan last year, whether they completed all of their key strategic thrusts and what the top three or four of those were, please?

Hon. I. Waddell: While I'm getting that information together, I want to follow up some items that the official opposition critic raised the other day. I have for him a copy of the Ministry of Fisheries announcement on the B.C. plan to renew the coho and an explanation of the revenue calculation for Tourism B.C. I think I'd promised him that, so I have these two papers for him.

I'll give the member a number, because they're in different areas.

First, inventory and mapping. Part of the business plan was to support branch programs in regulating activities affecting archaeological resources by, firstly, maintaining the provincial heritage register and its composite resource databases -- and we've already talked about that; secondly, ensuring that information is useful for regional and subregional planning through participation of government corporate resource initiatives; thirdly, establishing new relationships with first nations in collaboration with the aboriginal liaison and education program; and fourthly, ensuring the most practical and efficient use of ArcInfo GIS and Oracle database information technology -- in other words, using the new technology.

[4:30]

With respect to the aboriginal liaison and public education program, the program objective was to improve the understanding of branch functions and foster a positive attitude towards archaeological resource management between the archaeology branch, first nations and the public.

Those were some of the priorities in that area.

R. Thorpe: So those were the priorities. Did the ministry complete all of the things that they wanted to do within their business plan, or in fact did they have to drop some of them?

Hon. I. Waddell: They have been completed, and performance measures have been set up. I can give the member that answer, and I'm assured that that's happened. I ask him to give me a little time as minister to get my own feeling for what's happening. There are certain areas of the ministry where I feel that I know exactly what's going on; in other areas, I'm informed about what's going on. This is an interesting and controversial area, as some of the questions raised this afternoon indicate. I'm told that there is a plan and that performance measures are being met.

R. Thorpe: Through the variety of discussions and the variety of questions asked and the statements by the minister, I guess that it is a complex issue. With the legislation last being reviewed in 1994, I can remember the minister at that time -- I think he now resides in the great southern part of the Okanagan -- saying how complex it was. He had realized at the time that it was going to be extremely complex. I guess I'll just leave it at that.

But saying that. . . . I want to ask this question: knowing that all these complexities are there, and knowing that with the examples we've had here. . . . And yes, those are the ones that make the newspaper, but we also know that there are an awful lot of other people out there who are having difficulties dealing with government. I wonder if the minister could tell us if he has advised his staff to review this act with the intent of increasing service and cutting red tape.

Hon. I. Waddell: I tell them every day to cut red tape.

R. Thorpe: With direct reference to this act and to some of the issues we've been talking about here today, has the minister taken a leadership position? I believe he's one of the co-chairs of the government's red tape committee. Has he instructed his staff and the folks who work so hard on this every day to review this act from a perspective of actually cutting red tape and protecting the values and goals we're trying to achieve, but at the same time making it workable for everyday British Columbians?

[ Page 8222 ]

R. Thorpe: When can we expect that this work would be completed?

Hon. I. Waddell: It's an ongoing process. It will take a little while, but it should be completed by the end of the summer or early fall.

R. Thorpe: I look forward to following up with the minister and his staff on the completion of that and to being advised of what has been achieved.

With respect to inventory and mapping, I understand the maintenance of a provincial heritage register or database, but in the documentation I have, there's the word "development." To me, it seems to be a proactive word. In your objectives in inventory and mapping, can you expand upon the development of that area and how you're approaching that on a proactive basis? I guess an add-on to that is that in view of the facts that have come out today with respect to the apparent. . . . The communication effort has to be increased to the folks that work and live with it every day across British Columbia. Can you also advise me what proactive steps are being taken in the communications area with this?

Hon. I. Waddell: I can explain, so that all the members know. As I understand it, the provincial heritage registry is a collection of provincewide inventories for provincial-municipal designations of heritage sites: archaeological and traditional use, shipwrecks, culturally modified trees and other types of sites. Currently the provincial heritage registry contains more than 22,000 site records. We're trying to get involved in modern technology here, exploring web sites in this area, working with Info B.C. and other computer tie-ins. That's the area we're trying to go into.

R. Thorpe: In the archaeology area, can you confirm that we have 22 FTEs? Secondly -- because I think it's a pretty straightforward yes or no, or a confirmation -- how much money do you anticipate recovering from FRBC this year with respect to archaeological activities?

Hon. I. Waddell: Sorry, I'll answer the first part of the member's question and ask him to repeat the second part. Last year there were 22 FTEs; this year the projection is 20 FTEs.

R. Thorpe: I believe that last year the ministry had significant recoveries from FRBC in this area. Do you anticipate recoveries from FRBC this year?

Hon. I. Waddell: I'm informed that we had a project in the past, but we have none coming up this year. The project with FRBC was completed.

R. Thorpe: What would be the three key issues that this branch has to deal with in the current fiscal year?

Hon. I. Waddell: When the member asked me about the three key issues, I had a feeling that he's a Letterman fan -- you know, like, what's the top-ten list? He likes to ask me for the top-five list or the top-three list, so I've got a top-three list for him. But I don't have three, two, one; they're all equal. And you don't have to applaud after each one.

The first one is to maintain the database. The second one is to streamline the administration of the permits -- to administer the permits in a streamlined fashion. The third is to keep the involvement with the integrated land use planning -- be part of the LRMPs and the environmental assessment projects thereon.

R. Thorpe: For each of those top-three equal issues, do you have a plan that can be measured for degree of success, with time-lined activities that will be achieved by certain dates? Who has responsibility in each of those issues?

Hon. I. Waddell: I've tried as much as I can to make everything available. I don't think you've got the final business plan for next year. As soon I've got total sign-off, I'll make sure you get a copy -- all right?

Some of the performance measures in the archaeological branch are. . . . We want to deliver ten presentations to local government. We want to distribute a new information brochure on private property owners' and developers' responsibilities to protect and manage archaeological resources, apropos of some of the questions that came up today. We want to deliver approximately 50 education sessions to increase the ability of the general public and first nations communities to recognize and manage archaeological resources. We expect to issue over 300 archaeological permits and review over 3,000 development projects, and we hope to add at least 800 new sites to the provincial heritage registry and process approximately 700 requests for information. Those are pretty detailed performance measures, and I suppose you can ask me next year whether we achieved them.

R. Thorpe: With respect to those -- I would say -- broad-brush activities that you're going to undertake, and especially. . . . Again, I go back to what my three colleagues have brought up: the issue of communications and, from our interpretation and the communities we hear from, the lack of hitting the right button, if you will, within those communities with respect to the knowledge of some of this activity that we've been talking about. Are you working through the Union of B.C. Municipalities to ensure that they're also communicating these issues -- which, as you said earlier, are becoming so much more complex in each community -- through to the communities? You mentioned going out and having ten meetings. . . . Are they going to be strategically. . . ? Where are they going to take place, and when are they going to take place throughout the province?

[4:45]

R. Thorpe: I would say that this minister is trying much harder than the previous minister to provide timely information, which is appreciated. With respect to the ten community workshops, or whatever they are that we're talking about: would it be possible to ensure, unlike previous experiences, that we receive timely information on when and where those are going to take place, so that we too can advise people that these are taking place and so that we too can hear and participate in those local communities throughout British Columbia?

[ Page 8223 ]

R. Thorpe: With respect to the finances of this particular branch, I noticed that. . . . I know that from year to year it's fairly difficult to track the financial dealings with this branch because it has been reorganized. On vote 58, on pages 90 and 91 of the supplement to the estimates. . . . I noticed, if I read this correctly, that for the area that we're talking about right now, the budget for '97-98 was $6.478 million, and this year it appears to be $5.618 million. Given the issues that are before us and the ambitious programs that you have, are you going to be able to complete all of these projects that you've talked about?

Hon. I. Waddell: Well, there is a decrease. It includes heritage as well as archaeology. We've tried to go through there to make efficiencies in the interests of streamlining government -- more efficiency, less red tape and less taxes. We've done it through cuts to travel, administrative operations and so on -- as I believe the hon. member advocates, if not every day, at least every second day.

R. Thorpe: We do look forward to the day when in fact we stop the talk about cuts in taxes and actually see it in our paycheques, because so far in British Columbia the graph is not going that way. But, you know, we live in hope.

With respect to STOB 20, consulting: the $998,000 for consulting -- could we get some details on that number, please?

Hon. I. Waddell: I just want to say apropos of taxes that unfortunately the cuts in my ministry are real, and we have to live with them. These contracts are not contracts per se, but they're contracts including operations of heritage sites and so on.

R. Thorpe: Well, could we just have a quick breakdown, then, of how much of it pertains to archaeology and how much of it pertains to heritage?

Hon. I. Waddell: Could the member repeat the question? We're looking at which exact figure he's asking for now.

Interjection.

R. Thorpe: STOB 20. I'm trying to go through the Chair.

Hon. I. Waddell: STOB 20.

The Chair: Only one member can stand and speak at a time. If you'll just wait until the Chair recognizes the member.

R. Thorpe: Hon. Chair, just for the record, we are both capable of standing at the same time, but the rules of the House are that only one can stand.

There's $998,000 under STOB 20 for heritage and archaeology. I would like to know how much of it is for heritage and how much of it is for archaeology.

Hon. I. Waddell: It's $226,000 for archaeology; the remainder is for heritage.

R. Thorpe: And could we just have the brief details of what the $226,000 for archaeology is for, please?

Hon. I. Waddell: It's split about half-and-half between emergency salvage of archaeological material and development of the provincial heritage registry. It's $116,000 for the former and $110,000 for the latter.

R. Thorpe: So I guess I could conclude from that, then, that the streamlining process that's going to take place is going to be done inside with existing staff as opposed to outside with consulting staff. Is that correct?

Hon. I. Waddell: Through the streamlining we're trying to save money and increase service; that's what we're doing with it.

R. Thorpe: I'm sure the minister's aware of this, but just in case it slipped his memory; usually to streamline there's a very heavy upfront workload. You bring in all these resources at the beginning. You get the process streamlined; the benefits accrue to you short term. Hopefully, long term they accrue to you big-time. I just want to make sure that we have the resources. We have a reduction of two FTEs in this area. There don't appear to be any consulting resources for archaeology. I just want to make sure that we have the resources to do the streamlining that we're committed to doing.

Hon. I. Waddell: I'm instructed, through you, Chair, that. . . . I'm sorry. I'm just used to appearing in court, and you have to. . . .

A Voice: On what side?

Hon. I. Waddell: On any side that will hire me. I'll pass the hon. member my card if he needs someone -- perhaps some traffic offence on a motorbike or something; I don't know.

I'm told that right now we're using our own personnel -- and through MOTH, the transport authority. . . . If we need some outside consultants later, we'll hire those. I don't know what the member is getting at. If he wants to move that we increase my budget in this area, I'd listen to him.

R. Thorpe: No, I just want to make sure that the minister and the minister's staff are not here next year at this very same time, saying: "Boy, we sure had some admirable objectives. But you know what? We just couldn't get them done." Since we do have a performance measurement plan in place to complement this process, and since we've now concluded that we do have all of the resources, I look forward to very, very positive results next year. I'm sure the minister would look forward to positive results too. It would be an interesting accomplishment.

I understand, with some things that we'll be canvassing later, that we're going to be reallocating some resources to another area that has a huge backlog. I want to make sure, just for the record: are any of the resources from archaeology or heritage going to be taken out and reallocated over to another big pile of applications that are awaiting government review?

Hon. I. Waddell: I'm sorely tempted to give a long speech on the announcement that we made in Kamloops the other day -- the hon. member was there -- on back-country leases, but I'll forgo the temptation and tell the hon. member that we're not planning to transfer resources in this area.

[ Page 8224 ]

I do want to say, though, that it's become apparent to me and to my colleagues -- and I'm sure even to some members on the government side -- that there is uneasiness out there, probably from lack of communication. If the government or government staff feel at any time that there's a role that opposition MLAs can play within their communities in helping with this issue with respect to bones in yards and stuff like that, please. . . . There's no need to keep these things as state secrets. Perhaps if we all work together on some of these issues, we'll get them resolved for all British Columbians.

With that, I'll pass it over. I understand that another member has some questions in this area.

P. Reitsma: I'm pleased to participate. Just a few questions. The act, according to the minister, was in place long before he became minister. I kind of detected a little bit of an apology, if you like -- a bit of dis-compassion. Is the minister not particularly pleased with the act? I think the last time you looked at it was in 1994. Although the minister touched on it, are any major policy revisions or new rules and regulations anticipated?

Hon. I. Waddell: I'd say to the hon. member that I don't feel uncomfortable with the act. I was just trying to point out that the act's there, and it has certain requirements. I'm not planning amendments; it was amended in 1994. There were some amendments offered that were voted down, actually. You should have a look at that. The member from Sechelt posed an amendment with respect to third-party notices and so on; the Liberals and the NDP both opposed it. We're not planning any changes in the act right now, but I'm looking closely at some of the matters that came up today.

[5:00]

The answer was given in terms of the FTEs. Is there any anticipated cost-recovery at all from Fisheries B.C.? While I'll come to Craig Bay in a moment, in my area there are some fish-rearing and fish-bearing streams that might be affected by this archaeology branch or indeed by a heritage site.

Hon. I. Waddell: I should tell the hon. member that we must remember that there were only a few cases where the cost escalated; the vast majority didn't. The answer to the question is no, there is not.

P. Reitsma: If ownership, particularly of archaeologically significant artifacts, cannot be established -- which, I presume, might be possible -- who then becomes the owner of those artifacts?

Hon. I. Waddell: It depends on the individual cases. Sometimes the bones go back to first nations. After all, they are the ancestors of first nations and have to be treated with respect. Sometimes they go to the provincial museum. I'd have to check the act, but no section leaps to my mind at the moment.

P. Reitsma: Assuming this, though, I could foresee the possibility that some artifacts could be very valuable. There's nothing in the act or any section that would designate ownership in cases where there's no proof of ownership. I simply would like to know: would it go to the owner of the land? If it's Crown land, of course, it goes to the government. If it's private land, would it go to the owner of the land? Would it be shared with the government? Indeed, if it's shared with the government, that would invite the immediate question, of course, of whether the government would share in the cost of unearthing it.

Hon. I. Waddell: I'm not sure of the answer to that. Something sticks in my mind -- that legally, it would revert to the province. But I'd have to do some research on that.

P. Reitsma: I would appreciate it if the minister would do that. If it reverts to the Crown, that's fine. But if it's on private land and the private landowner was saddled with the costs, which could be in the tens of thousands of dollars, I think there should be some kind of a moral obligation whereby. . . . If the Crown gets ownership of the artifacts, then surely it should not be at the expense of the private landowner, who had to provide the monetary cost of unearthing and the delay of a project and so on. I'd appreciate if the minister would look into it.

Is the minister familiar with the ongoing Craig Bay project in the Parksville area?

Hon. I. Waddell: I just want to draw the member's attention. . . . What is heritage? Under the act, a heritage object is "personal property that has heritage value to British Columbia, a community or an aboriginal people." So it's a collective value, a value to a community. That's why it would likely go to a first nation, or it would go to a community. It would go to the state, to the province, and not to the individual. Secondly, I'd like to point out that there are similar acts in most other provinces.

With respect to Craig Bay, yes, I am familiar with it.

P. Reitsma: I appreciate the answer on heritage. It's like art, I suppose; it's in the eye of the beholder. In terms of heritage, it's probably a bit more defined, actually, because heritage has tradition and roots.

The reason I ask a number of questions about Craig Bay is that although the development is ongoing, I'm still getting questions. I know that the former minister, John Cashore, had some correspondence with the member for West Vancouver-Capilano -- in fact, I've had some correspondence as well. The area of the Craig Bay development was known to have archaeological value. Would the minister know when that was established, in terms of it having archaeological value? Arrangements were agreed upon in advance. What kinds of arrangements were agreed upon?

Hon. I. Waddell: Well, I'm not familiar with all the correspondence. I'm tempted to ask the member whether he's familiar with the letters, but I won't. I'll say to him instead that

[ Page 8225 ]

P. Reitsma: Near the end of February 1994, a burial site was accidentally uncovered by the developer during unpermitted activity. Further studies were initiated, and they determined that the archaeological significance of the site had been underestimated.

I have two or three questions. If the minister doesn't have the immediate answer, that's fine, as long as I can get it later. What kind of unpermitted activity took place? Studies were initiated. Who paid for them, and how much were those studies? What was the archaeological significance?

Hon. I. Waddell: I can say that yes, it was underestimated. I don't have those specific answers, but I'll endeavour to get them for the member.

P. Reitsma: That's fine, because it will be in Hansard. I appreciate the comment.

Subsequent to the discoveries, it was determined that removing the burials would not be practical. Would the minister know why it wasn't practical and according to whom it was not practical?

Hon. I. Waddell: There are a number of phases in this project. I will get the member the details of that.

Interjection.

Hon. I. Waddell: There are several phases and different sites. If the member wants to give us any specific correspondence regarding specific sites, we'll endeavour to reply.

P. Reitsma: In 1995 -- I talked to the minister at that time -- the province agreed to purchase some 14 acres of the 135 acres for $7.8 million. In fact, it was $6.8 million, plus $1 million in land to be agreed upon. There was some downtime. I just wonder if any of the costs associated with the downtime were incorporated in that purchase price. Who determined that price? It says that it might have been an independent market-value appraisal of the property. If that's the case, who did the appraisal?

Hon. I. Waddell: I'll try to get the member the information. I'm looking at my estimates, and I don't see a figure for Craig Bay.

A Voice: That's '95.

Hon. I. Waddell: That's 1995, and I'm dealing with '98-99.

P. Reitsma: I appreciate that, but I just wonder if there were any further costs or grants associated with the project. I know that there was $7.8 million and $1 million in land, which didn't materialize. It said that mutually agreeable property was not located. I wonder who was not agreeable. I wonder if there are any other costs or grants associated that will be paid to the project. Have any other studies been undertaken to find out if there are other artifacts or bones? Just for the information of the minister, I happened to be present when they had an extremely moving ceremony to remove the bones. There were hundreds of our native friends there from all over the northwest. It was a very moving ceremony to provide closure to the unearthing of the bones. It was extremely impressive, actually.

I just wonder if there are more grants or more cash or more land exchanges being contemplated. Of course, the projects are still ongoing.

Hon. I. Waddell: I'm glad the hon. member drew our attention to the moving ceremony. That's why it's a complex matter, and that's why there are different interests that you have to deal with here. I'm not aware of any other studies or grants. The government paid $6.8 million for the property. It was to be a land swap. That didn't happen, so an extra million dollars was paid. The owner, Intrawest, still has a piece of land. I'm not aware of studies or more grants happening there.

A Voice: It's Intracorp.

Hon. I. Waddell: Sorry, it's not Intrawest. Intrawest is the ski people. Intracorp. . . .

A Voice: It's a subsidiary.

Hon. I. Waddell: Is that a subsidiary?

A Voice: Yeah.

Hon. I. Waddell: Intrawest seems to own everything, but Intracorp is a subsidiary, I'm told. They own the apartment-site land. Human remains remain secured in a metal container and are stored on the part of the site purchased by the province.

P. Reitsma: Craig Bay Estates is a subsidiary of Intrawest from Vancouver.

A change of site, I suppose. I have just one or two questions on Giscome Portage Trail near Prince George, I believe it is -- a heritage site. What is the cost of that? Were there any grants? And how is it promoted? What other sites have received that designation, say, within the last two years? It is a provincial heritage site, and it's the Giscome Portage Trail near Prince George.

Hon. I. Waddell: That particular site was designated last year, and there were no costs associated with it.

R. Thorpe: I think that's it for this. We can move on to the Arts Council.

Hon. Chair, if the minister could thank his staff for coming, we'd appreciate it.

Hon. I. Waddell: Thank you, I appreciate that. The deputy's trying to draw my attention that I should give you something. I'm just about to tell her that I gave it to you already a little while ago -- it's on the record.

R. Thorpe: As we move into this very, very important part of the ministry, the cultural part of the ministry, I'm just wondering if the minister could give us an update on the status of a commercial mortgage with Livent. I believe that the government on July 31, 1994, issued a $5.25 million mortgage, loaned for seven to ten years with a surtax on that issue. That

[ Page 8226 ]

[5:15]

R. Thorpe: Is that a ticket surcharge, for lack of a better word I could use? Is that a fixed amount, or does that vary with the receipts?

Hon. I. Waddell: I don't know quite how to say this. We used to say it's a buck, but do you say it's a loonie? I don't know.

Interjection.

Hon. I. Waddell: No, no. This is Canadian money. It's a dollar per ticket until the mortgage is paid and then it goes to 50 cents. So it's a continuing matter.

R. Thorpe: I do believe that it equates to around $630,000. Does that sound like the most recent number in that ballpark? I just want to confirm that those funds do flow right through to the B.C. Arts Council. Is that correct?

Hon. I. Waddell: I'm a little leery to get into this because it's a matter for the Arts Council. But I think the member is in the ballpark. It's around that figure, and the money is coming in to the Arts Council. It's up to the Arts Council to decide what to do with it. I think they've allocated some of it, and most of the amount is still left.

R. Thorpe: I'm just wondering, hon. Chair, about this government saying that it's committed to the youth of British Columbia, especially to the students of B.C. Could the minister could advise us on the status of the touring groups travelling to schools -- namely, in the areas of art, singing and drama?

Hon. I. Waddell: I'm pleased to tell the hon. member that this is a very good program: Art Starts in Schools. It's now joint between the Arts Council, the Vancouver Foundation and the Hamber Foundation.

R. Thorpe: I'm just wondering if the minister can tell us: is that a program that's status quo? Have those programs been diminished throughout the province, or are they growing?

Hon. I. Waddell: I understand that the program is growing. I'm pleased to say that the ministry put in $275,000 last year, and I believe we're putting in the same this year. The Vancouver Foundation is stable in their funding, and the dollars for the Hamber Foundation are growing. The dollars are growing -- new dollars.

R. Thorpe: It's interesting that the dollars appear to be growing, because I'm advised by people in the arts community. . . . Perhaps these programs are focused in major communities, the lower mainland. Could the minister advise if the programs are growing beyond Hope, in rural British Columbia?

Hon. I. Waddell: Last year every school district but one participated in the program.

R. Thorpe: I think it would be very, very important, based on the information that I've received from throughout British Columbia, that perhaps this is an issue. . . . I don't want to get into a debate here, but perhaps ministry staff and the Arts Council could get together. I seem to be receiving different stories with respect to this. I know that we all want to work for the benefit of the kids of British Columbia. I will just leave it at that.

I will just ask this question with respect to music: have we identified. . . ? With the development of music programs for young children throughout British Columbia, is there a shortage of musical instruments today?

Hon. I. Waddell: You know, I wish the member had been with me up in Prince George. I went up there a couple of weeks ago to see the final competition for music at the arts festival. I saw a magnificent young man in his twenties who sang opera. I saw other people playing the piano, and I saw this wonderful ten-year-old girl who won the prize -- and I presented it to her -- for playing the violin. She was -- what do they say? -- a child prodigy. I'm certain that she is going to go on to fame in Canada. She's from Coquitlam. I'm not sure that I can answer the question as to whether they have any instruments. She certainly had a good instrument, and she knew how to play it. Could the hon. member indicate to me more specifically what he wants?

R. Thorpe: I'm advised that there is a shortage throughout British Columbia of available instruments for young children to get involved in programs and to develop their skills.

With respect to the Festival of the Arts in Prince George. . . . It's interesting that the minister would bring that up. I must say that although I didn't have the opportunity to go to Prince George, I do remember the minister rushing out of the House -- I think it was a Friday morning -- to catch a flight to go. We did have the Festival of the Arts in Penticton a couple of years ago; it's a wonderful experience. Those young British Columbians do a tremendous job.

I don't know if the minister's office is getting mail, but I seem to be getting faxes in the last few days with respect to this from parents and the performing arts association. This particular group happens to be from Coquitlam, interestingly enough; I just quote their opinion: ". . .an enormous lack of funding provided to young students of the performing arts in the province of British Columbia." It goes on, and I quote, at the bottom: "It is known that if you feed a hungry child, they will become a better student."

There's another one I've received; I've received about five of these in the last two or three days. This one from Surrey goes on to say: "Recent cutbacks in government funding, which are channelled through the B.C. Arts Council and hence the BCFA, have caused a change in programming which has seen the removal of all juniors, aged ten to 12, in speech arts,

[ Page 8227 ]

I'm just wondering if the minister could make any comment. Is there anything that the ministry is doing, with respect to the Arts Council, in trying to adjust or assess some of these shortcomings, to what degree are they shortcomings, and is there in fact any corrective action we can all take?

Hon. I. Waddell: Of course, these are the costs of budget cutbacks. This is what happens. They're real. You affect programs. So I'm sure that when the member is calling for government cutbacks, he understands too that they have real repercussions.

I just reappointed many of the members of the Arts Council. I'm pleased to see that we have Ann Mortifee as the new chair, who is a performing actress, performing singer, writer and role model for young British Columbians as to what they can achieve.

I'm committed to working to get more funds for this particular area, the arts. I think arts are really important. They provide jobs; they're the best job creator in the country, if you look at Stats Canada figures. I don't have to be convinced; I just have to convince the opposition and other people that this is an area. . . .

If you notice, in the estimates we're not cutting back further. The ministry's cutting, but we're not cutting back further the expenses on the Arts Council side. I hope the member will support me in my endeavour to try and get more money in this area, so we can get money to people who really need it. When I saw the level of performances at the arts festival, I was impressed indeed. Just in case they didn't send me a copy of those faxes, perhaps the member can provide me with a copy of them.

R. Thorpe: Yes. I'm sure the minister would share this view with me, although the minister should probably speak to this issue himself: I don't believe that it's not a question of a shortage of money, but I think the issue is spending priorities. Children should be our priority. I think the minister would agree with that.

I'm just wondering, because the minister has said that he is committed to trying to secure more funds for this type of arts development in British Columbia: can the minister advise us if in fact his ministry has run any economic models with respect to the benefits of increased spending in this area, with respect to job creation?

Hon. I. Waddell: The short answer is that we haven't run economic models, but we do track the job creation. But, you know, there are all kinds of studies: Paul Audley's studies over the years and all the reports of the House of Commons Standing Committee on Culture and Communications over the last two decades -- they're worth a read -- in which it's clearly set out in the stats how many jobs are provided in the arts and culture. Statistics Canada says that in the last decade jobs in culture and sports have seen a greater increase than in any other area, and that includes high-tech. That's an interesting stat, and I repeat it endlessly -- well, secondly; I always say first that small business creates 90 percent of the jobs in the province, but after that I repeat that statistic.

[5:30]

Since it doesn't appear that they've done any analysis or work of their own within their own ministries with respect to this, can the minister or staff advise what current work is going on either with the Ministry of Education and/or the Ministry of Labour with respect to funding priorities for children and the arts?

Hon. I. Waddell: I can't advise on that at the moment, but I'll endeavour to get the member some information.

I forgot to point out when we were talking about youth that I made a point of trying to appoint a youth to the Arts Council under the youth mentoring program, and I think that's very helpful.

R. Thorpe: I wasn't sure there, hon. Chair, whether the minister had received some more information from staff that he wanted to share.

Hon. I. Waddell: I just want to share with the committee that the Arts Council have met with those ministries that were mentioned about these very issues.

R. Thorpe: Obviously it's important to have initial meetings, but it's more important to get results. Since initial meetings -- perhaps more than one -- have taken place on this issue, I'm just wondering if the minister and his staff could advise us on what future programs or development. . .or on where this initial meeting is going with respect to helping develop our young people through arts and culture.

Hon. I. Waddell: We made those ministries aware of the priorities, and we are continuing to work with them to try and make progress in this area.

R. Thorpe: As I understand it -- and I know that the minister and his staff will correct me where I'm not quite as well informed as I should be -- the Arts Council works here and it gets some support staff from within the ministry, and so obviously there's a very good day-to-day working relationship. In that regard I'm just wondering if the minister could share with us: what are the three key strategic initiatives that are going to take place with respect to this area of responsibility in the coming year?

Hon. I. Waddell: The three I would identify are: first, to effectively service the B.C. Arts Council and its program and policy objectives; second, to complete the implementation of Film B.C. programs; third, to begin development of the overall cultural industry strategy. I've met with the Arts Council and indicated to them my priority in the area of culture. I feel we have a good working relationship with the council, and we provide the staff that works with it. I intend to meet with them more often. With respect to the other areas, I've already identified where I think we can make some progress.

The third one is to develop an overall cultural policy strategy. I hope to move to develop a B.C. strategy of the arts, which we can talk about notionally, and we can talk about where we want to go. I think there's a lot of work to be done in this area. If anything, we've lagged in that area, and we have to move a bit on it. We're much more developed in a lot of other areas. The council is working. . .it works like the Canada Council. I anticipate it will continue to operate. There's always the issue of money; of course it needs more money. But I think that the basics are fairly solid. There are a couple of other issues that the council has to deal with and that we have to deal with.

[ Page 8228 ]

Hon. I. Waddell: To quote the Bible: "Your old men will dream dreams and your young men will see visions" -- and where there are no visions, the people doth perish. So we believe in a vision for culture, and we're working to develop that. The biblical quote, I think, should be very helpful.

R. Thorpe: There's no question that the Bible has helped many people. I guess what I would like to know -- and I strongly endorse that approach -- is: what is a timetable for these exercises? As many members will know, these are processes which take a lot of involvement of a lot of people to grow the vision on where you're going. I'm just wondering what the timetable is. Is that a measurable program that's going to be achieved in the current fiscal year? Is that the target?

Hon. I. Waddell: I don't want to set out a timetable right now -- that would be unfair to the Arts Council. I'd rather set out a commitment. I'm setting out a commitment now, and I have to work with the Arts Council timetable. We've got a general cultural policy for the province, but I want to work with the Arts Council. We have just re-appointed them, and we have a new chair and a new deputy chair, and we have some work to do there.

R. Thorpe: With the Arts Council working hand in hand with the ministry, does the ministry encourage -- and does it, in fact, measure -- the effectiveness of the various programs and the needs of the arts community?

Hon. I. Waddell: We're a rather bare-bones ministry, you know. But we do work with the Arts Council.

I might say that we have been very lucky in the last little while having such a great Canadian as Mavor Moore as the chair of the Arts Council. You almost got spoiled; you could rely on his experience and what he's done and his advice. We're going to miss him. Actually, he's back now writing an opera, I think. He's a great Canadian, a great performer. We've got, as a minister would say, an ongoing process for review.

R. Thorpe: Hon. Chair, as you know -- and as the minister knows -- I like to travel on the high road. The "ongoing process" is okay as long as we're moving in a positive direction. But I think it's important to send a strong signal to the Arts Council and to the arts community of British Columbia that, in fact, we are going to move on a timetable that is going to make their development and their lives as easy as they can be, given the environment.

One of the areas that concerns me and, I think, a number of groups in British Columbia is the uncertainty with respect to year-to-year funding. Has the ministry considered or will the ministry consider moving to more of a multi-year funding commitment with respect to the Arts Council? Quite frankly, it's nice to have a vision and it's nice to have a multi-year business plan, but if you don't know your funding, it's very difficult because you live in so much uncertainty. I understand that funding is from year to year right now. My question to the minister is: is the ministry considering moving to multi-year funding commitments that are firm so that organizations outside, that are at arm's length, can get on with the delivery of their programs?

Hon. I. Waddell: That's a good question, and it's important. First of all, let me say that I am committed to the arts, and I've shown that through the appointment of Anne Mortifee in revising the Arts Council, through getting out there and appearing at arts events and through advocating for the arts. I think the commitment is genuinely there.

Arts groups, nationally and provincially, have always wanted commitments for long-term funding. Look at the CBC. The CBC always asks: "Give us a budget that is for two or three years so that we can plan." Governments, led by finance departments, always resist that because they want the flexibility to be able to move. They may want to make major cuts; they may want to make an increase. They may have extra money; that doesn't usually happen, but it sometimes happens. So governments are reluctant to do that.

I myself understand the need for that commitment, and we'll look at that. We have given. . . . If you look at the budget here, there's a commitment: "We're not cutting you anymore." That's a commitment; that helps. It would be better to say that we're increasing funding. Maybe, if all the measures we're taking for the economy -- including the film program that I announced this morning -- can help that economy move, then we'll have more money and we will be able to increase the budget. To answer the question specifically, I understand where they're coming from. I'm sympathetic to that, and we will look at that as part of an ongoing review of cultural policy.

R. Thorpe: I think it's important for the minister to acknowledge that they'll look at it. But one of the things the minister seems to think about finances is that they can only increase. Many organizations just want certainty. We have two examples that have. . . . We've got one right across the road here, the museum. There was a funding arrangement made there. I believe it was a five-year commitment -- three years of known funding and then it's up for negotiations this year. Then they get on with the rest of their lives. For Tourism B.C., whether they're happy with it or not, there is a funding formula that's in place. They can now get on with the rest of their lives. That's why I think it's important. I think it's very, very important. It's not necessarily the degree of the funding. Yes, that is important, but the certainty is a bigger issue. I would ask the minister to seriously consider that, and I think he has acknowledged that he will look at it.

Noting the hour, I just want to try to finish up this section, if we can. Moving away from the Arts Council and looking at the budget with respect to culture. . . . We have a total of $6.592 million for culture and heritage programs. What is the split between culture and heritage?

Hon. I. Waddell: Madam Chair, $5.4 million is culture.

R. Thorpe: Could we briefly be advised of what the $5.4 million covers?

The Chair: Noting the hour, minister.

Hon. I. Waddell: Yes, I know -- I'll be brief.

Salaries are $832,000, operating costs are $982,000, asset acquisition is $10,000, and grants and contributions are $3,600,000 -- for a total of $5,424,000.

R. Thorpe: I would appreciate the details of those numbers, if I could get that at another time. The staff has been most cooperative in that area.

[ Page 8229 ]

Hon. I. Waddell: The majority of this -- $3.25 million -- goes to B.C. Film; the rest goes to cultural industries organizations. That doesn't include the money for administering the Arts Council or anything like that. It's more of an industrial grant.

[5:45]

I want to take this time to again thank the staff that's come to help us through this part and also, on behalf of the official opposition, thank Mavor Moore very much for his tremendous contributions to the cultural community of British Columbia. We wish him well in whatever endeavours he undertakes. We know he'll be a great success.

Hon. I. Waddell: I'll make sure you get the information you requested. And I will pass that on to Mr. Moore.

I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 5:46 p.m.

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