2011 Legislative Session: Fourth Session, 39th Parliament
HANSARD
The following electronic version is for informational purposes only.
The printed version remains the official version.
official report of
Debates of the Legislative Assembly
(hansard)
Thursday, November 24, 2011
Morning Sitting
Volume 28, Number 9
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CONTENTS |
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Orders of the Day |
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Committee of the Whole House |
9053 |
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Bill 19 — Miscellaneous Statutes Amendment Act (No. 3), 2011 (continued) |
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L. Popham |
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Hon. S. Thomson |
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M. Sather |
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V. Huntington |
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J. Horgan |
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Hon. R. Coleman |
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D. Donaldson |
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[ Page 9053 ]
THURSDAY, NOVEMBER 24, 2011
The House met at 10:03 a.m.
[Mr. Speaker in the chair.]
Prayers.
Orders of the Day
Hon. G. Abbott: I call committee stage debate on Bill 19, the Miscellaneous Statutes Amendment Act (No. 3), 2011.
Committee of the Whole House
Bill 19 — Miscellaneous Statutes
Amendment Act (No. 3), 2011
(continued)
The House in Committee of the Whole on Bill 19; D. Black in the chair.
The committee met at 10:06 a.m.
On section 3 (continued).
L. Popham: For section 3, I do have some questions regarding the panel structure that was decided on for the legislation and the way it's going to be governed. I note that the Minister of Agriculture is not in the House today.
Interjection.
L. Popham: I wasn't going to say anything mean about him. All right.
I am happy to see the acting minister in the House because the acting minister has a lot of history with agriculture and a very good understanding of the two types of governance models that were put forward. In fact, in a prior role the acting minister was on a committee that suggested we go back to a provincial panel, I believe. So it will be interesting to talk a little bit about the governance structure now.
The regional system. Although it was recommended by the Agricultural Land Commission chair for quite a few reasons, this legislation is re-establishing the regional system, although giving the chair of the Agricultural Land Commission some more power over those regional committees.
My question is to the acting minister. Is there any concern that this structure would weaken the governance model of the Agricultural Land Commission?
Hon. S. Thomson: I appreciate the opportunity to respond this morning. First, I wanted to introduce the staff that's here in support with me today: Linda Bates, the manager of legislation for the Ministry of Agriculture; Wes Shoemaker, the deputy minister; and Gavin Last, who is the assistant director of policy and industry competitiveness. I'm pleased to take part in the debate this morning. I even got back into the role of Minister of Agriculture by wearing my agriculture tie this morning.
To respond to the question, the model that is being proposed here covers the best of both worlds, I think, in terms of being able to provide, through the regional panel process, the regional responsiveness and awareness out in the regions of the specific needs and differences between the regions in the province, but providing that overall greater accountability, as the member opposite mentioned, by providing additional strength of oversight by the chair, ensuring that with the operations of the regional panels, the provincial interests and provincial objectives are consistent across the regional panel.
So that's the model that has been proposed here, bringing in the best of the regional approach and stronger provincial oversight, which was one of the recommendations of the report.
L. Popham: I understand the theory around that. But I'm going through the list of cons within the report that the chair put out, and one of the concerns was that decision-making was too close to local governments and people affected by decisions.
The reason I'm bringing that up is because in some recommendations from the Finance report it shows that there is some support for creating exclusions up in northern B.C. for the gas exploration field.
Now, if there's a regional panel that is in charge of that area and there are some ALR exclusions that are wanted by the town in that area but it goes against the mandate of the Agricultural Land Commission, I still see that there may be a challenge there. I'm just wondering how the legislation changes that.
Hon. S. Thomson: Just to point out and to clarify, in this section which we're dealing with, in terms of section 3, it talks about the panel having all the powers, duties and functions of the commission in respect to the application or other matters allocated to the panel by the chair of the commission.
In terms of dealing with the decisions, those will be allocated to the panel by the chair. The chair has the ability to set scope and conditions on that allocation, so that brings in the provincial interest. Also, further on, we're going to be dealing with section 7 of this bill or section 30.1 of the legislation that provides for the opportunity for reconsideration by the chair to ensure that the provincial interests are maintained in the decision-making process.
[ Page 9054 ]
L. Popham: Is it fair to say, then, that the chair is making the decisions over the regional panels? The regional panels are there for what reason?
Hon. S. Thomson: Sorry, I must have missed something there. Just to be clear, it's the chair that's providing the allocations to the regional panels. The greatest majority of the decisions will be made by the regional panels, but the amendments to this bill do provide for the process of reconsideration of those decisions.
It would be the chair that would be making the decisions around which applications get reconsidered or which decisions may get reconsidered. But just to be clear, it's not the chair that is making the decision on the reconsideration; it's the executive panel group, which is the chair of all the regional panels. That decision on the reconsideration will be made by the full executive, which is the chair of each regional panel.
L. Popham: One of the points that the chair of the commission made was that with regional panels there's increased potential for commissioners to be placed in situations of apprehension, of bias, of potential conflict of interest.
As I see it from what the acting minister has just told me, the regional panels and the chair of those panels are still in charge of making the decisions. The chair of the Agricultural Land Commission would then step in if there is some disagreement over the direction that's going that may be in conflict with the commission's mandate.
If that's the case, at what point does the chair of the commission step in, and what's the process of stopping the decision that was made by the regional panel?
Hon. S. Thomson: Just to be clear, the process with the legislation is that the chair would allocate the application, and that could be to any panel. The panel then has the responsibility under its authority to act and carry through the process to make the decision. The chair does not intercede in that process at all.
The basis for reconsideration follows, once a decision has been made. There would be no process around where the chair would intercede or interfere in the decisions or the process of the regional panel as they're doing their due consideration, once they have been allocated that by the chair.
L. Popham: So how does the regional panel system take away the potential for conflict of interest?
Hon. S. Thomson: First of all, to again stress that the process of allocation by the chair…. In terms of allocating that application, if the chair feels that there is an obvious conflict of interest within that application, he can assign it to a different panel. That ability is there, clearly, if there is potential or obvious conflict of interest.
The other point is that individual members, from a legal perspective, are subject to conflict-of-interest guidelines. So if there's specific conflict of interest from a legal perspective, as part of their fiduciary responsibility, they're subject to that.
Additionally, with the overall changes here, a greater emphasis on training and education with the panels in terms of the overall objectives will be part of the work that's being done by the chair, again making sure that the work is done with all of the regional panels in terms of the overall objectives and ensuring consistency of decision-making.
L. Popham: It would seem to me that one of the final points that the chair of the commission made was that these panels, as they were before this legislation, were very costly to operate. Now it seems that we're going into managing these panels in more depth. I agree that the training is good, and that sounds great, but under the very stretched budget of the Land Commission it seems like an odd decision to me.
Another example of possible conflict of interest. The Ministry of Transportation is one of the large applicants for exclusions out of the ALR. How would that process be approved once the Ministry of Transportation has identified land that should be removed due to construction and infrastructure? Does that go through a panel system?
Hon. S. Thomson: The answer to that is yes. They're an applicant to the process that would come through an application for exclusion that would be allocated by the chair and considered by the appropriate regional panel.
L. Popham: In that case, the chair would have power over the commission if there was some doubt of the direction they were going. But the Minister of Agriculture would now have control over the chair's decision and would be able to intervene if the decision was not agreed upon? If the chair of the Agricultural Land Commission, for example, was trying to protect the mandate of the ALR to keep land in the ALR but it was in conflict with applications for the Ministry of Transportation, would the minister at that point intervene?
Hon. S. Thomson: No. Just to be clear, with these changes, there are no changes in the process for applications.
What we're talking about is, once the application is made, the chair's role in allocating and referring it to the panel. And no, the minister has no authority or ability to intercede or interfere in that process. The Land Commission is an independent body. Nothing in this legislation changes that.
[ Page 9055 ]
L. Popham: Given that this legislation, the intent, is to strengthen the ALR, does the acting minister see any potential for Ministry of Transportation's projects to be denied or slowed down because of this new legislation?
Hon. S. Thomson: No. As I made clear, no change to the current process with respect to the amendments to this legislation.
M. Sather: A question, then, to the acting minister. If the Transportation Ministry expropriates farmland to put a road in, is it after that expropriation that it then goes to the panel for exclusion?
Hon. S. Thomson: I don't have the expropriation legislation and powers in front of me here. Can I take that question under notice? We'll respond and make sure we get back to the member opposite with an answer to his specific question.
V. Huntington: As I read the explanatory notes to section 3, it "clarifies that a panel has the powers, duties and functions of the commission in respect of matters allocated to the panel by the chair of the commission." I'd like to…. I'm sorry, perhaps the minister…. Do you want me to repeat the question?
Hon. S. Thomson: Engaged in a quick conversation here. If you could start over, I'd really appreciate it. Thanks.
V. Huntington: Section 3 states: "Section 11 (5) is amended by striking out 'before the commission,' and substituting 'allocated to the panel by the chair of the commission.'"
When I read the explanatory notes, they state that the amendment "clarifies that a panel has the powers, duties and functions of the commission in respect of matters allocated to the panel by the chair of the commission."
That would seem to me that the chair of the commission has the opportunity to narrow the powers, duties and functions of a panel. Am I reading this correctly?
Hon. S. Thomson: Just before I respond to that specific question, the discussion I was having previously while you were asking the questions was around…. Sorry, this is my little bit of lack of experience, I guess, in terms of the response I gave to the previous question around taking a question on notice. Apparently, that's not a process under committee debate in terms of notice.
Again, to clarify the response, the question related to something that was not part of this legislation. But we will commit to getting the answer to the member opposite.
In response to the member's question, the answer is yes.
V. Huntington: I'm wondering if perhaps the minister could enlarge upon that a little bit. If the chair then has the power to narrow the mandate of a panel, can you provide some suggestion about how that might occur, when that might occur? And is that in fact his power as chair?
Hon. S. Thomson: A clarification here. The process when allocating is to ensure that in the process, the regional panels are not establishing or making policies — to make sure that the clear allocation direction is that they're considering the application and not in a process of creating additional or new policy as part of the commission. That would be where you would limit the scope of what they're considering, and that's also why we have the process where there can be the process for reconsideration.
If decisions are made that potentially establish policy that is outside the current policy of the commission, then that's where the chair has the ability to seek the reconsideration of that decision.
V. Huntington: It will be interesting to see how this new power, I would say, for the chair unfolds. Just one other brief question then. This section intimates that the chair, then, is reviewing all applications before they're sent to a panel, and not necessarily just the CEO. Is that correct?
Hon. S. Thomson: This will be an internal process within the commission about how that is administratively managed. I think it's probably fair to say that he won't be reviewing in detail every application before the allocation process is made. Obviously, ones that have greater scope would be reviewed.
Just to be clear, the decision is simply around allocation and who to allocate it to. He's not in a process of making decisions within this process. Those do go to the regional panel, and then there's the process for reconsideration.
L. Popham: I think we're probably going to be moving on after this question. But just to be clear, under the updated governance structure with this legislation, the chair of the Agricultural Land Commission is overseeing the regional panels. The new CEO that's going to be hired into the commission…. Is the new CEO overseeing the chair of the Agricultural Land Commission, or is the chair of the Agricultural Land Commission overseeing the CEO?
Hon. S. Thomson: The chair oversees the CEO.
Section 3 approved.
On section 4.
[ Page 9056 ]
L. Popham: Can the minister explain the intent of this section?
Hon. S. Thomson: This section is a housekeeping amendment. The existing legislation currently requires the commission to submit a separate service plan, and legal advice has indicated that this requirement contravenes the Budget Transparency and Accountability Act. The commission is funded out of an appropriation from the consolidated revenue fund for which the Minister of Agriculture is responsible. Therefore, the commission's service plan and service plan reports will be made under the Ministry of Agriculture.
It's a housekeeping one from a legal perspective, but the intention is that there would still be a service plan for the Land Commission submitted through the Ministry of Agriculture and not separately.
L. Popham: So who would be preparing the budget for the commission then?
Hon. S. Thomson: Again, just to clarify: this section relates to the service plan. The budget preparation for the commission goes through the process, and that hasn't changed. They prepare that. It's the responsibility of the Minister of Agriculture to take that through the process for budget approval — the budget preparation and regular approval processes. This amendment is simply about including the Land Commission service plan within the service plan in the Ministry of Agriculture.
Additionally, there are two parts to this. The other one is a submission of financial reporting. That's not the budget process; that's the reporting process. The current wording requires the financial reports to be filed by June 30 of each year for that financial year and the preceding financial year. In other words, the financial statements would include April 1 to June 30 of the current year as well as the preceding fiscal year. This is not consistent with how the commission reports its finances, and in fact, it is not consistent with the government financial reporting generally.
This was an error in the original drafting which has been corrected to ensure that the commission financial reporting process is consistent with the government financial reporting process.
L. Popham: With this new legislation, does this make it more difficult for stakeholders such as myself to understand what the service plan is? Is it more hidden with this legislation?
Hon. S. Thomson: No, not at all. This simply is, as I said, a housekeeping amendment. The process that is currently in place with the service plan and reporting will continue, but it will be within the Ministry of Agriculture and not separately. This should not in any way change the ability or the accountability or the information that's available.
Section 4 approved.
On section 5.
M. Sather: This section is on covenants, and the explanatory note says that it "provides that a covenant that restricts the use of agricultural land for farm purposes has no effect until approved by the commission." I want to ask the minister: who is it that requests these covenants?
Hon. S. Thomson: Covenants are requested and placed on the land by the owner.
M. Sather: But isn't it also the case that the Agricultural Land Commission can request a covenant?
Hon. S. Thomson: From a legal perspective, the Land Commission could request a covenant, but the landowner is under no obligation to do that unless he agrees.
M. Sather: The Agricultural Land Commission could say, then…. For example, if a road were being put through the ALR, the commission could request that a covenant for agricultural use be put on the adjoining lands. The road, let's say, had been approved under those conditions. So is the minister saying, then, that…?
Well, first of all, let me ask…. In that case I'm assuming, then, that it would be the local government, in conjunction with the landowner, that would put on the covenant. Would that be likely?
Hon. S. Thomson: Just to clarify, this section and the amendment that is being proposed here simply takes a previous condition that was in place, which related to where there was a prohibition of farming activity — that that would require the approval of the commission.
What this amendment does is add a process where there are potential restrictions to farming activity and, again, to say that in that case, in the interests of ensuring that agricultural land is used productively for agriculture, if there are restrictions proposed in that covenant, that would still require the approval of the commission.
We've simply taken what was before, where they had that ability — which would be only on where there is a prohibition of farming activities as part of the covenant — to broaden it to say that where there's a prohibition or where there are restrictions to farming activities, then that requires the approval of the commission.
M. Sather: If the decision by the Agricultural Land Commission requests a covenant that restricts the use of land for agriculture only, is that a prohibition? Or what is that? It was agricultural land before, and the commission is saying it must continue as agricultural land, as I understood it. There's no prohibition in there, is there?
Hon. S. Thomson: This amendment of the legislation relates to the situation where a landowner is requesting or where there's a covenant requested on the land that takes a portion or some of that land out of agricultural production, either through a straight prohibition on agricultural use on the land or through a prohibition of agriculture on a portion of that land or prohibition of certain activities.
Again, all we're simply doing here is broadening the process to say that it requires Agricultural Land Commission approval for either a prohibition or where there are restrictions to agricultural activity on a portion of the ALR land, just broadening the powers of the commission in that case — and, I think, very clearly strengthening the role of the commission in the process to ensure that the agricultural land continues to be used for agricultural purposes.
If a person, the landowner, wants to have a covenant…. In some cases it may be valid. This doesn't mean that in every case the commission is going to refuse that covenant request. There may be some legitimate circumstances where there are values — habitat, environmental values, those kinds of things — where you may want a covenant. It may be appropriate and may help support the overall farm operations, so you would not necessarily want to completely restrict the process around covenants.
It just provides the additional oversight for the commission beyond covenants that prohibit activity to covenants that both prohibit and potentially restrict agricultural activity on agricultural land.
M. Sather: To go back to an earlier comment that the minister made, and that was that if a covenant was requested by the Agricultural Land Commission, it would require the landowner to be in agreement with that. So if the landowner is not in agreement with the covenant being placed upon their land, the effect of the ruling, if you will, by the Agricultural Land Commission really has no effect, then.
Hon. S. Thomson: To be clear, we're dealing with the bill here and the legislation and the amendment that's in front of us, and the member opposite is referring to a different process around applications and approvals of applications and conditions that may be placed on approvals of applications.
This section deals with the capacity of the commission, where there are covenants requested by the landowner, to be able to put the lens on it of ensuring both — if there are prohibitions of agriculture or restrictions to agricultural activity on the ALR land — to be able to have that ability to say yes or no to the covenant.
This is simply about giving some…. Again, in the theme of what we're doing with the overall legislation in terms of strengthening the capacity of the commission and strengthening the protection of agricultural land, it's to be able to have that oversight beyond simply dealing with where the covenant requests a prohibition.
M. Sather: I take the minister's comments under advisement, but I think it's unfortunate. I'll go back into Hansard, but I'm quite sure that he made the comment that if the Agricultural Land Commission were to put a covenant on, which has happened in my community, that it's up to the landowner as to whether or not they agree.
That's very disconcerting, because communities have been led to understand that a covenant that is placed on land for agriculture purposes only by the Agriculture Land Commission has some effect. But the minister's comments earlier, which he's not now willing to address, I guess, make it pretty clear that that's not the case. That's going to be very unwelcome news in my community.
Hon. S. Thomson: I need to respond to this. Just to be clear, I made the comments about what this section in the legislation that we're dealing with here and the amendments deal with. The process that the member opposite is talking about — nothing has changed with respect to the amendments here. That process is an application process, and there are conditions related to approval of an application with respect to subdivision or exclusion or anything like that. If there are conditions placed on the approval process, then that process continues, and nothing has changed in the legislation with respect to the situation or the line of question that the member opposite is pursuing.
V. Huntington: I recognize that this section seems somewhat innocent, but from the point of view of Delta South in particular, for instance, conservation covenants are a large part of what land exchanges often contain in Delta, and they're absolutely critical to provide and encourage habitat. I'm very concerned that the Land Commission can then take a look at a covenant that requires winter crops, for instance, or lure crops, to be provided. Can and would the Agriculture Land Commission step in to prevent such covenants under the Right to Farm Act, for instance?
Hon. S. Thomson: I appreciate the question. I tried to address this in my earlier comments in debate on
[ Page 9058 ]
this section. This simply provides…. Theoretically, the answer could be yes, that if it was viewed as being a negative impact on the agriculture industry, a negative impact on the ALR lands, potentially they could.
I think we all know of situations and circumstances where there are covenants of this nature that work well with the agriculture industry and are supportive. That's the balance that would continue to be worked on between the commission and the agriculture community and other groups with those interests.
This by no means says that in every case the covenant would be refused because there is some potential prohibition or potential direction around the types of agriculture activities. That could still take place. But from the perspective of wanting to preserve and ensure the productive use of high-quality agricultural land, I think it's appropriate that the commission has as part of its overall mandate a role in looking at that. That's simply what we're doing here. Beyond simply covenants that fully restrict and prohibit agricultural use of that land, we're saying that it relates now to prohibitions and restrictions.
V. Huntington: I do have a couple more. I'd like the minister and his staff to understand that I'm very concerned about how this section could roll out, depending on the point of view of commissioners. Covenants of that nature — conservation covenants, of which there are quite a few in Delta South — are critical to that agriculture-wildlife balance that is so fundamental to sustaining the flyway.
If you were, for instance, to have a commission that had no interest in that balance, is there any likelihood that the province might step in? Or would they be fully supportive of a commission that refused to accept covenants that were conservation-oriented?
Hon. S. Thomson: We understand the important balance that needs to be achieved. That's why I indicated that we'll work with that.
Again, I want to stress that this is two things. This is why we have…. It points to the importance of the regional panel — so they understand the regional and unique natures of the region — and to say that this is about balance. This is about making sure there are not covenants that tilt that balance so there is negative impact on agriculture and on the overall mandate of protecting and ensuring the productive use of good agricultural land.
V. Huntington: If a buyer really didn't want a covenant and wasn't interested in maintaining a conservation covenant on the land, that buyer could theoretically then force the seller, under threat of the commission's denial of the covenant, to get rid of a covenant before the sale. Is there any anticipation that there will be regulatory understandings surrounding this ability to deny a covenant?
Hon. S. Thomson: To be clear, what we're addressing here is the ability through this process of the commission to be able have that oversight where there are covenants to be placed on agricultural land — that if the covenant prohibits or restricts agricultural activity, to be able to have the approval process on that. If there is a covenant that prohibits or there is a covenant that restricts on ALR land, then that would require the approval of the commission.
V. Huntington: This could prove to be very problematic unless it's monitored very carefully. Generally, conservation covenants are usually referring to land during the winter months.
Anyway, obviously, we're not going to be able to amend this section, but it's going to need some very careful monitoring. I think there should be some discussions with the Ministry of Environment on this issue in order to resolve the potential for a panel denying covenants that are extremely important and don't affect the right to farm or agricultural activity during the growing months.
I have one other question. Does the ministry anticipate this delaying sales of agricultural land to any great degree, and are there going to be requirements that a commission review these covenants in a timely manner when a real estate transaction is taking place?
Hon. S. Thomson: The proposal here doesn't anticipate any change in current processes. The intent of the commission, particularly with some of the other changes we're proposing, is to be able to deal with applications in a timely manner.
V. Huntington: But a great many of the covenants are attached during time of real estate transaction. For instance, the province in its negotiations with the Brunswick Point farmers attached a massive covenant to all of the land. So my questions would be: (a) would a covenant of that nature delay the transaction and (b) just as an addition, would the commission be reviewing covenants attached by the province in certain situations?
Hon. S. Thomson: Just to be clear, I want to go back to the intent of this section. It's to ensure that there is the oversight when covenants are being considered and placed. It's the intent to ensure that there is consultation and engagement of parties in the process, including Ministry of Environment and our ministry, Forests, Lands and Natural Resource Operations, where they have a role.
But again, just to stress that this section does not change the administrative processes of the commission. Many other of the sections we're debating here, in our view, will improve the operations of the commission and the processes, which means things can be dealt with in a timely manner.
Again, just to point out that this section is dealing with simply broadening the current process beyond the process where there are covenants that prohibit the activity, meaning that the covenant says there's no agricultural use of that land to having the ability to have the Land Commission oversight in covenants that both prohibit and have a restriction on them.
Sections 5 and 6 approved.
On section 7.
M. Sather: Section 7 is on "Chief executive officer may refuse applications." Under section (2)(a) and (b) it says: "Despite any other provision of this Act, on an application, the chief executive officer may refuse permission if (a) within 5 years immediately preceding the application, a previous application was refused permission by the commission, (b) the previous application was made on or after the date this section comes into force."
My first question to the minister. Could he tell me: when does the government anticipate that this section would come into force?
Hon. S. Thomson: This amendment would become effective on royal assent.
M. Sather: Excuse me, perhaps, for my ignorance, Minister, but when would royal assent be?
Hon. S. Thomson: As I stated, this comes into effect when royal assent is provided, so that means when the bill is passed and royal assent is provided by the Lieutenant-Governor.
M. Sather: I thought it was a pretty straightforward question. I'm not sure I got a straightforward answer. Can the minister tell me: are we looking at the end of this session? Are we looking at the beginning of January next year? When is the timeline?
[L. Reid in the chair.]
Hon. S. Thomson: From my position here as minister I don't control that timeline, so as I said, it would be when royal assent is provided.
M. Sather: That's interesting, because to me this is the most significant piece of the legislation that the government has brought in with regard to the Agricultural Land Commission, and it's been hailed by people in my community, saying: "Wow, this is fabulous."
The government has talked about how they've been beset upon by reapplication after reapplication. It has tied up the Agricultural Land Commission. So this looks like, and I think it is intended to be, a piece of legislation that would address that.
If I'm understanding the legislation…. It seems pretty straightforward. It says if I made an application to the Agricultural Land Commission to have some of my land removed and it was turned down, I couldn't reapply for another five years. That would definitely also give some certainty to the agricultural community in general, but I would think it would help the Agricultural Land Commission with their backlog of applications.
Obviously, I would think the government must have discussed…. You know, do they see this as a necessity, to bring this legislation into effect soon? If we have no assurance of that…. I mean, sometimes legislation never comes into effect. I'm looking here for some assurance from the minister that this legislation is actually going to come into effect soon. Otherwise, I'd have to say it's not worth the paper it's written on.
Hon. S. Thomson: In this case royal assent is the fastest way to bring this into effect. Otherwise, we'd potentially have to bring it through by enactment of regulation, so that's why the provision is that this would come in place on royal assent. Again, that timeline is set by the process and the Lieutenant-Governor. The intention is to…. Because that is the fastest way to bring this into provision, that's the method that has been chosen here.
M. Sather: Let's assume, for example, that this legislation or this section came into effect January 1, 2012. Subsection (b) says: "the previous application was made on or after the date this section comes into force." Well, if it came into force — let's just, say, choose a date — January 1, 2012…. In that case, if I had made an application in September of 2011 that was turned down, is this saying, then, that I could make another application in January of 2012?
Hon. S. Thomson: To be clear, this provision does not have retroactive application. Whenever the date is that this comes into provision, an application made after that date would then be considered. If it was then dealt with, then the provisions of this amendment would apply to that application at that point. If it was previous, you would not be able to reapply for that specific application under all the criteria here. It does not have retroactive application.
M. Sather: It's unfortunate that the government didn't bring a retroactive application in, say, for a couple
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of years. Assuming that this legislation does come into force, it's really going to, you know, drag out the effectiveness of it because there will continue to be reapplications coming forward, and it will actually take five years from the time this legislation comes into force that it's actually going to have any effect.
People, I think, were jumping up and down, some of them, in my community, thinking that this takes effect as soon as this legislation is approved, in common parlance, and that's not going to be the effect. All I can say is that I think it still is a good piece of legislation if it is brought into force, and it will take effect but, unfortunately, not as quickly as it could have.
I wanted to ask the minister about subsection (2)(d), which is talking about the chief executive officer refusing a permission again if "the chief executive officer considers that the application is substantially the same as the previous application." Can the minister give me a better understanding of what "substantially the same" means in this context?
Hon. S. Thomson: This section sets out some of the criteria where the chief executive officer may refuse the application, and it says "substantially the same." I think there's recognition that there may be circumstances where there is significant new information or a significant change in terms of the application, which would then provide the provision for it to be considered. But the basic intent is that if it is substantially the same application for the same piece of land and for the same purpose, then the chief executive officer has the ability to refuse that application.
I think this will take work with the commission and things, in terms of developing the internal policies of how that consideration would be applied. But again, as the member opposite pointed out, this is a key piece of the amendment in terms of being able to provide the efficient operation of the commission and have them focus on their core mandate of preservation of agricultural land — to be able to deal with applications and to be able to reduce the treadmill of resubmissions of applications that are substantially the same.
M. Sather: I think I just have one last question on that. Just again, on that question of "substantially the same" that the minister…. Supposing I put an application in to remove 100 hectares of my farm to the Agriculture Land Commission and was turned down. If I came back and said, "Okay, I've taken 25 hectares out, and I'm reapplying," would the minister see that as being substantially the same or different?
Hon. S. Thomson: Just to be clear, that's not the minister's decision. That'll be the policy that's developed within the commission. Again, if it's, you know, substantially the same application…. Each one would be considered on a case-by-case basis, and policy will be developed internally within the commission to manage the consideration of this process.
Sections 7 to 9 inclusive approved.
On section 10.
Hon. P. Bell: Madam Chair, I'd suggest we take a three- or four-minute recess.
The Chair: Hon. Members, we'll reconvene in five minutes' time.
The committee recessed from 11:20 a.m. to 11:22 a.m.
[L. Reid in the chair.]
Section 10 approved.
On section 11.
J. Horgan: I'm pleased to rise and speak in committee stage of Bill 19, section 11. I want to, just as a preamble to my questions, as the minister and his staff find their place in their binder…. The press release that accompanied this bill, with respect to the amendments to the Mines Act that we're discussing now, said that the amendments would provide the province "the power to introduce regulations that would exempt some lower-risk activities from the permitting process."
I'm wondering if the minister could, as we start this section, give a clear understanding to this House and the public what those lower-risk activities would be. Is it a comprehensive list? Is it going to be laid out in regulation?
Hon. R. Coleman: They will be laid out in regulations, but I'll try and answer the member's question. The amendment gives the power to create the regulations exempting some low-risk activities from the requirements for a Mines Act permit. The subsequent regulation is going to outline circumstances for exemptions and provide standard conditions to ensure environmental protection, health and safety.
The regulation-making power includes the use of qualified professionals as potential conditions of exemption. Consultations will occur across government, prior to any regulation being put in place, with First Nations, industry, industry associations and the public, in developing the regulations. The change will reduce the regulatory burden on proponents of specific low-risk exploration activities and allow government resources to concentrate on activities of higher risk. The amendment will not come into force until we have completed consultations with interested parties in developing it.
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As an example of exemption, low-risk activities could include mineral exploration involving a drill program of a limited size that does not require roadbuilding and is not located within the riparian setback distances of any stream, wetland or lake, as stipulated in the Health, Safety and Reclamation Code — a limited size could be defined as six to ten setups for drilling holes; mineral exploration that involves charging the ground with an electrical current and measuring the response to understand the minerals that are in the ground, which does not involve surface disturbance; mineral exploration involving small-scale clearing to expose the underlying rocks and sample the materialized zone under the sand, gravel and dirt; and small volume aggregate extraction or new drill programs for mineral explorations on an operating minesite.
J. Horgan: The minister, in reciting the materials in the briefing note, made reference to consultations. Can the minister outline the organizations that will be consulted and how long that negotiation and consultation will take place?
Hon. R. Coleman: We haven't made the full list up in advance of the legislation, but we will consult with the Mining Association, the Mineral Exploration Association, First Nations and the public. The process doesn't have a significant timeline tied to it one way or the other. We will make sure that proper consultation is completed before we would bring the regulation to government.
J. Horgan: The minister referred to two prominent advocacy organizations: Mineral Exploration B.C. and the Mining Association, and then, broadly, First Nations and the public. Could the minister identify what mechanisms will be used to consult with the public, the broad public?
Specifically with the challenges of certainty on the land base, the minister knows well that if we are going to proceed with mineral exploration and mining activity in British Columbia, we need to have certainty on the land base, which involves, inevitably, in most parts of British Columbia, an understanding with First Nations. To put on the inventory "the broader public and First Nations" is comforting, but I would prefer to have a more specific understanding of how that consultation is going to be taking place.
Hon. R. Coleman: That work has not been completed prior to the legislation coming. It will be done during the regulatory process. One of the concerns is that I would mention an organization and not catch the others. There are small mining organizations; they will be consulted. The First Nations mining council, obviously, would be part of the process. We would be instructed from their side with regards to how they would like us to consult broader, if they thought that was appropriate.
The Mining Association, as I mentioned; the exploration association — those types of groups that are all affected by mining are also going to be consulted. The public consultation would be in the form, I would think, that we would advertise or communicate with the public and allow them to give us feedback, mainly in a written or electronic basis. There could be something that they would be able to access us quickly through the Ministry of Energy and Mines website for their feedback with regards to the regulation.
We will work that through before we go out to consultation. I will, actually, share with the member the organizations and how we're going to do it in advance of us doing it.
J. Horgan: In my limited consultation since this bill was tabled some weeks ago, I've heard from environmental NGOs focused on mining activity, concerned that the limited circumstances for exemptions to permits are not specified in the act and will be laid down in regulations some time in the future, not subject to the scrutiny and rigour of the debate that we've been seeing here today on Bill 19.
I'm wondering: in the decision to bring forward these amendments to the Mines Act, did the minister contemplate having a broader consultation with the public? Primarily, because one of the issues…. He will know this in his constituency in the Fraser Valley. Aggregate mining, gravel pits are a very controversial issue in communities, whether it be in local areas, whether it be with local governments.
To not have an opportunity to fully understand what the limited exceptions would be, I think, is troubling for many people across British Columbia.
I don't want to belabour this point, in the interest of time. But as we go through these sections here and look at the latitude and leeway given to the chief inspector of mines, I think the confidence that the public would have…. The statutory authority contained in the legislation, with respect to the chief inspector, is being watered down and diminished, perhaps providing the opportunity for other members of the ministry or, in fact, members of cabinet to direct what are limited circumstances.
Did the minister contemplate having a broader consultation on amendments to the act that, I would argue, would have significant impact in communities right around B.C. — certainly in my area, the minister's area, throughout the valley and up Vancouver Island, where aggregate activity is taking place and communities mobilize with the hope that their voices will be heard? Now it may well be that there won't be plans in place because persons or classes of persons can be exempt from the act.
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Hon. R. Coleman: There are a number of questions there from the member, so I'll try to deal with them. I haven't started a process to do a review of the entire Mines Act at this stage of the game. That may be something we'll decide through the ministry to do as we come through with everything. But we have not started a whole-scale review of the act at this stage of the game. It really hasn't come to me from any organization or anybody that has suggested that to me. It's certainly something I'll take sort of under advisement and think about.
The issue around aggregate — this is the small aggregate thing. This is to determine the surface areas, or whatever, with regard to what might be below the dirt and all those things. When you go into an aggregate permit, you go beyond that, obviously, as you know, to actually extract the material.
We've had the Fraser Valley aggregate pilot project going for nine years now in the Fraser Valley, with still no results. It's a challenge that faces myself and the Minister of Forests, Lands and Natural Resource Operations — how we're going to bring that to some point where the communities and everybody will feel they now have an understanding, particularly with aggregate in that particular region of the province. We'll be doing some work on that in the next few months, but it's not affected by these changes.
J. Horgan: In the act or proposed amendments to the Mines Act, subsection (a)(0.1) says: "In this section, 'exempt person' means a person in a class of persons exempt under subsection (1.1) (a) from the requirement under subsection (1) to hold a permit."
That refers us back to the three subclauses in the act, which this bill is proposing to amend. I am wanting to know what circumstances would see an applicant exempt from requiring a permit. And if you don't have a permit, would you not be required to table a plan with the chief inspector so that regional inspectors could have an understanding of what's going on at that particular site with respect to health and safety?
Hon. R. Coleman: Under the Mines Act, the chief inspector of mines currently has the power to exempt a person from acquiring a permit on a case-by-case basis. This bill, with regards to a person who might be exempt — an owner, an agent or a manager of a mine is a person under the Mines Act, within the definitions. The definition of a person also includes companies. Under the Mines Act, a person must hold a permit.
With the proposed change in section 10, a person would be exempt from needing a permit under certain conditions. These conditions would be set out in regulation. Then in subsection (2.01), without limiting the section, basically, it outlines that "(a) the provision of security in the manner and for purposes similar to those described in subsections (4) and (5)" are required still.
We're not taking away anything to do with somebody having to post a security and notification of reporting requirements used to qualify professionals and those sorts of things with regards to environmental protection and reclamation, and public health and safety. It also allows the Ministry of Transportation and Infrastructure to be exempt in order to access gravel to repair highways. So they could be an exempted party as well.
J. Horgan: I do note that as we get through this clause, it does make reference to a person or a ministry. I assume that that's the point the minister just answered. I won't go there.
But if the existing Mines Act, section 10, with respect to permits, gives the chief inspector…. If he is satisfied that because of the nature of the proposed work, it is not necessary to obtain a permit, "the chief inspector may exempt in writing the owner, agent or manager." If it's already in the act, what's the force and purpose of this amendment if, in the existing legislation, the chief inspector already has that authority?
Hon. R. Coleman: It's done now, as I said, on a case-by-case basis. The member is correct about that. This is about, though, that we have extensive processes for people that do the most little thing on the land base. By having it defined in regulation what could be exempt, it allows us to, frankly, streamline our processes and reduce some of the backlogs, or what people to refer to as a backlog in applications, because these things all take time. They have to go all the way up the food chain every time, even for the smallest activity.
The intent is to allow this to remove some of that period of backlog that's taking place and allow us to concentrate on the bigger-picture things at the same time, knowing that we can protect it with regulation and environmental protection and have the rules follow.
That's really why, rather than having to go on a case-by-case basis, we want to identify what activities could go ahead without a permit on the land base, limited, like I explained earlier — like not being near riparian areas or creeks or streams or that sort of thing — and allowing those processes to be able to be done quicker. Obviously, that is a large part of what I think is our backlog — those types of small activities that could be dealt with on a better basis. That's particularly why we're doing this.
J. Horgan: Well, I appreciate the minister's point of view here, but it has been my experience that the chief inspector of mines has the statutory authority to make these decisions, and I would argue that it's not the little stuff that necessarily is slowing things up.
The Mines Act has been in place in this province for an awfully long time. The role and function of the chief
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inspector is well known to those in the industry. It's well known to First Nations that have interests in mining. If we are going to remove from the chief inspector the ability to make decisions on a case-by-case basis, we're setting up, in my view, a list of regulations established by cabinet that may well not be necessarily in the interest of the land base.
We have, as a community and as a society, given that authority over to the chief inspector of mines. By diminishing that individual, that position's ability to make decisions on a case-by-case basis, it would be my position that we're passing that on to cabinet. Again, I have to raise the spectre of the uranium issue and the Boss Power fiasco that the chief inspector, in exercising his authority, had legal opinion that he did have the authority to make the decision on its merits.
I believe that's a principle and an ethic that the people of British Columbia are quite comfortable with. Decision-makers should be making decisions on their merits, case by case. We don't have so many applications…. The minister may have the backlog at his fingertips, and I would be delighted to hear directly from him just how much of a backlog there is. And if he could break it down by category — aggregate, mineral and metal — that would be helpful as well.
Hon. R. Coleman: We're not removing the ability for the chief inspector of mines to do what he's doing now. All we're doing is we will identify activities that wouldn't require some permitting processes simply because they're so low impact on the land base. And that's basically what we're doing.
The powers are still in the act for the chief inspector of mines. And the power is to actually exempt persons, which would be much broader than what is defined in regulation for the chief inspector of mines. What we will do is we will identify those activities on the land base we think we could do this way. We'll take them out for the consultation, and then we will take them back and finish the regulation and put the regulations in place. But we're not taking the chief inspector of mines' power away.
J. Horgan: Well, it's my contention that you're limiting the discretion of the chief inspector by providing a category by which he must exempt by regulation. Today the chief inspector has the discretion on a case-by-case basis to make, in his or her judgment, the best decision for the province, the rights to those resources and the applicant. So it's my view that that discretion, I would argue, is being overtaken by cabinet regulation and then, by extension, providing an opportunity for those that have access to decision-makers outside of the statutory role into the political realm to get circumstances and instances put on that list of regulations that don't currently exist.
But I'll move on to a further section, (2.01), where the following is: "(c) the use of qualified professionals." Can the minister describe what that list would look like of qualified professionals? Will it be comprehensive? Will it be restrictive?
Hon. R. Coleman: It will be a finite number of individuals or qualifications. It would be people like engineers, geoscientists and those types of…. I would imagine environmental engineers, people who would have a governing body of professional conduct so that they have a qualification that we would normally accept as a professional qualification under other circumstances if we were assessing an application.
J. Horgan: So what credentials would these qualified individuals require? Is that list available? Has the minister and staff contemplated what those credentials would be?
Hon. R. Coleman: We'll create the list during consultation, but my description of them would lead us to believe that if you're a member of the professional engineers' association and you're a qualified engineer, you would have a degree in engineering from an accepted, obviously, post-secondary institution. The same thing with a geoscientist or an environmental engineer — those folks would be qualified, obviously, by education, by a professional body. There would be a finite number of them, and they would be identified. But they would be the people that you would normally see working with people within this industry that would have professional credentials or could be qualified professionals.
J. Horgan: In formulating this amendment to the Mines Act and including it in the miscellaneous amendments bill for this session, what was the motivation for the minister? He has said that it was a concern about a backlog, and I asked about the specifics of that backlog. If it was that, can the minister give me a definitive number on what they're trying to reduce? And could he explain to me — prescribing through regulation limited circumstances — how that's going to help?
Hon. R. Coleman: The motivation wasn't the backlog. The motivation was, obviously, streamlining to be able to get limited activity on the land base, be able to be done without having to go through such an extensive process as it does now, to allow people to get their early base of land exploration done in such a way that they could make a decision for larger investments, which would require that the plan would come with the environmental assessment and all the rest of it, because there's a lot more.
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This is the early touching of the land. From there, obviously, as the member knows, there's an extensive approval and application process and notice of works and all of those things as people come through to do further activity on the land base.
It really is about streamlining some of our processes at the front end with regards to the early explorers on our land, who have told us over time that the processes for them to just go look at their claim and do some small items on their claim are being limited because of the length of time and the period of time and the application and the details they have to provide in order to do just that when they're only doing something very small.
J. Horgan: Well, the minister has said over the course of this session in questions with respect to the Boss Power issue and the acknowledgment by government that the chief inspector's statutory obligations were overlooked, declared and conceded in court…. Did that issue have any bearing or impact on the proposed amendments we're seeing today?
Hon. R. Coleman: No.
J. Horgan: Now, I may be wrong, and the minister can correct me, but in the course of questioning on the Boss Power issue, I got the impression that the minister took this very seriously and a review was underway to determine how that happened and to ensure that it didn't happen again. Am I incorrect in that?
The reason for the question…. So we're sticking to the issue of the amendment, hon. Chair, because I saw a raised eyebrow on that. My understanding was that the minister recognized that an acknowledgment by the Crown of misfeasance with respect to the chief inspector was a serious issue and it was being reviewed. We now see an amendment to the chief inspector's authority in legislation or proposed legislation. It strikes me that there's likely to be a connection. Is that correct?
Hon. R. Coleman: No, there is not.
J. Horgan: Well, I would argue that there probably should have been if we have, as I've outlined and as the government through the Attorney General's ministry conceded, misfeasance of public office with respect to the chief inspector. And within weeks of those allegations becoming public, we have an amendment to the Mines Act specifically focused on the chief inspector's role and responsibilities within government. It strikes me that if there isn't a connection, there should have been one. But in the interest of time, I'll move on.
With respect to the notice-of-works permit that is required now under the act, if an applicant no longer requires a permit, will they still be required to put in place a plan so that regional inspectors have some idea what works are taking place? Or is this just a free pass?
Hon. R. Coleman: I'll point the member to section (2.01), where it says: "…terms and conditions imposed under those subsections may include terms and conditions respecting any or all of the following." There's a list of five of them.
Basically, what it is, is there are going to be terms and conditions on the regs that will make sure we know what's going on, on the land base. It's just a matter of what processes that we don't have to do with regards to small activity on the land that I described earlier.
J. Horgan: I thank the minister for his response.
With accountability, then, going back to the chief inspector, if a permit is not required but a plan is still to be in place, how will that speed up the process? The permit is usually granted to the applicant after a review of the plan. If a permit is not required but a plan is, where are the savings in time and where are the efficiencies that the minister alleges will result from this change?
Hon. R. Coleman: The restrictions, the rules, are still in the code. They still have to follow the code with regards to what's in the code for the energy in the Ministry of Energy and Mines. We still have the ability to inspect and enforce. What this does is it means that for real slow activity, there's not an application that has to be processed, and that's where we find our saving of time.
D. Donaldson: My understanding of the rationale for this amendment is along the lines of streamlining and reducing bureaucracy. Now, I understand there's a type of permit for this activity. It's a multi-year, area-based permit where the proponent is given a three- to five-year window under the permit. They need to provide a fairly significant level of detail for the first year, but in further years that kind of detail is not required.
Given that this kind of permit is available and seems to be very efficient — I hear from people in the Ministry of Mines that it works well and there's very little paperwork required — why is the minister introducing an amendment that doesn't seem to be necessary?
Hon. R. Coleman: Well, we think it is necessary. It will reduce the regulatory burden on mining proponents of specific low-risk activities and will allow government resources to concentrate on those activities that are at higher risk — those in and around riparian areas, those types of things, and with respect to environmental protection, health and safety, and potential liability.
The current processing time and backlog of permit applications under the Mines Act are of a concern to the mineral and mine sector, and what we're trying to do
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in working with them is to come up with a solution by reducing the circumstances where a permit is required. The proposed change will help to address those issues.
D. Donaldson: Well, a couple of questions arise from that. The minister mentions backlogs. Once again, is this amendment intended to deal with backlogged permits?
Hon. R. Coleman: Yeah, it helps us in a number of areas and, certainly, with regards to not having to process applications where the impact or the activity is so low that it's not required to send somebody through an extensive process.
At the same time, it does allow us to streamline our activities and concentrate on a number of activities in the province. In the member's area of the province we're dealing with a number of pretty significant and complex applications, First Nations negotiations and consultation. We want our people to be able to concentrate on that so that we can get the results there at the same time as we recognize that there are some activities that don't need to go through a similar process.
You know, one-size-fits-all solutions don't fit for everything, so that's why we will, through consultation with the public and industry and what have you, identify through regulation what those activities are. We will consult on that. We will bring the regulations forward, and they will be implemented.
In the meantime, at the same time we will then be able to target resources efficiently within government. So it's a twofold thing; it really is. But this has been, certainly, brought to our attention over the last number of years as something people felt we should look at within the Mines Act, and that's what we did.
D. Donaldson: Is the minister saying that the multi-year, area-based permit is not an effective tool in dealing with these kinds of situations he describes? If so, then why would the government have introduced multi-year, area-based permitting?
Hon. R. Coleman: Well, the other long-term area permit processes and the activity on the land base is another concern that we're looking into, actually, outside of this particular regulation. Our concern is that the standards of practice may not encourage the level of activity that should take place in a large area-based claim, so we're going to look at the timelines in and around those as well. But they're not included in this legislation.
J. Horgan: I'd like to just go back to a comment the minister made responding to a question from my colleague from Stikine. He said in response that one size doesn't fit all. Then that begs the question that if that's the case, why not leave the discretion that currently exists in the office of the chief inspector of mines to manage these issues on a case-by-case basis? To put a prescriptive set of regulations in place strikes me as trying to make everything fit one size.
Hon. R. Coleman: This will identify where the flexibility is and what it is we're talking about. These types of activities at low levels would actually fit most of the province. It's when you get into different terrain, different types of land cover, different types and size of streams and creeks, the environmental stuff — those things which go to a much more detailed permitting process simply because those are the things that we believe will allow us to be on the land base with.
J. Horgan: Again, I don't want to discourage more rigorous application of regulation to those issues that the minister just described, but by the same token I would argue that the discretion in the office of the chief inspector has allowed in the past and will allow, presumably, in the future, without these amendments, that individual to make a decision and a determination on what is low impact and what is high impact.
What we're doing by this change is giving to cabinet the ability to decide what's low and what's high, and I would argue that I don't know how many geologists are in cabinet right now. I don't know how many regulatory lawyers are in cabinet right now. But I would suggest not as many as there are housed in the ministry.
Noting the time, I suggest we rise, report progress and ask leave to sit again.
Motion approved.
The committee rose at 11:58 a.m.
The House resumed; Mr. Speaker in the chair.
The Committee of the Whole, having reported progress, was granted leave to sit again.
Hon. R. Coleman moved adjournment of the House.
Motion approved.
Mr. Speaker: This House stands adjourned until 1:30 this afternoon.
The House adjourned at 11:58 a.m.
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