2014 Legislative Session: Third Session, 40th 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 6, 2014

Afternoon Sitting

Volume 17, Number 7

ISSN 0709-1281 (Print)
ISSN 1499-2175 (Online)

THURSDAY, NOVEMBER 6, 2014

The House met at 1:32 p.m.

[Madame Speaker in the chair.]

Routine Business

Introductions by Members

J. Yap: I have a series of introductions — very appropriate as we move towards Remembrance Day.

With us today in the gallery is a group from the Chinese Canadian Military Museum Society. Members of the House will recall that some of these folks have visited the parliament over the years, and we’re delighted that they were able to join us again.

They were in Victoria to participate in a ceremony this morning at the William Head correctional facility, where there is a gravesite which contains the remains of a number of Chinese who arrived in Canada 100 years ago during the First World War on their way to Europe as part of the Chinese Labour Corps.

It’s not a widely known part of the history of the First World War, but over 100,000 Chinese were brought to Europe, either through Canada or from China to Europe, to participate in the war, providing labour to the Allies in the First World War.

It’s not widely known, but it’s estimated 70,000 travelled through Canada during that period of time, the First World War. Some perished, and a number were buried at William Head correctional facility.

Today a plaque was placed by this group, including some World War II veterans. With your forbearance, Madame Speaker, I’d like to introduce some of them who are here: World War II veteran George Chow; World War II veteran Peggy Lee; World War II veteran Gordon Quan; along with the president of the Chinese Canadian Military Museum Society, King Wan.

And with them, veterans Samuel Chan; Donald Chapman; Vincent Chan; George Ing; Rosalind Ing; Paul Lee; Alison Maclean, who is a documentary film-maker who’s widely known for her work in documenting the contribution of Chinese-Canadians in the World Wars; Kit Wong; Tommy Wong; Edmund Wu; Wei Fang Zhou; Harry Chow; and Jimmy Chow.

Also with us in the gallery today is the assistant warden of William Head correctional facility, Mr. Anthony Baldo.

Would the House please offer a warm welcome to our guests.

R. Lee: Hon. Speaker, may I seek leave to make an introduction?

Madame Speaker: Please proceed.

[1335]

R. Lee: I would like to continue from my colleague’s introductions. Actually, my Uncle Monty Lee and Auntie Meu One Lee are here today. My uncle is a veteran. I also had another uncle, Edward Lee, but he passed away last month, so he couldn’t be here with us today. Monty and my family are very close together with my grandfather. My grandfather came here 101 years ago.

I also would like to introduce some residents from Burnaby. We have Bing Wong. He’s very active in the aboriginal community as well. He came to my coffee meeting almost every month. I also have Howard Lee. Howard is the founder of the Chinese-Canadian Military Museum, also the past president. We also have Carrie Kwong, veteran, and Albert Wu, major retired, from Burnaby.

I also would like to introduce Tim Fang. He’s also a director of the Chinese Canadian Military Museum.

We have heard about the William Head Station plaque. The plaque was actually a joint project with the Chinese Canadian Military Museum Society, the William Head Institution and the Canadian Forces Base Esquimalt. These three organizations have put up this plaque to commemorate the 100th anniversary of the First World War and, also, the Chinese-Canadian pioneering immigrants — as well as, of course, the members of the Chinese Labour Corps who transited through the site.

Would the House help me to make them all welcome.

Point of Privilege

(continued)

Hon. M. de Jong: Madame Speaker, before calling the orders of the day, I’d like to respond to a matter of privilege that was advanced by the member for Burnaby–Deer Lake earlier this week, on November 4, specifically alleging that the Minister of Advanced Education had deliberately misled the House during an exchange in question period that took place on March 5, 2014.

Members will know, and I believe you appreciate as well, that I take the suggestion that anyone in this chamber would intentionally make a misleading statement very, very seriously.

The rules and conventions of this place have evolved over the centuries, and its ability to operate effectively on behalf of our citizens is dependent upon those rules and conventions being respected by all members.

The member refers in her submission to the following answer provided by the Advanced Education Minister during the course of that exchange, specifically:

“There’s no shortage of outlandish comments that I can attribute to the member for Vancouver–Point Grey, and this certainly is another one of those.

“Kwantlen Polytechnic University certainly reports all their earnings. Like I said before, anything that’s earned over $75,000 is reportable — reportable to the taxpayers of British Columbia, and it’s available for all to see.”

What she does not do is stipulate with particularity in her submission which part of the answer she is relying
[ Page 5278 ]
upon in support of her proposition that the House had been misled. I’ll come to that in a moment.

The Speaker is also aware that over time this House had set down some detailed guidelines for what is and what is not considered to be a matter of privilege. Appendix E of Parliamentary Practice in British Columbia, third edition, page 294, section 15, states: “A dispute between members as to allegations of fact does not amount to a matter of privilege.” This practice is further described on page 296, where it states: “Unless there is evidence that a member has deliberately misled the House, a matter of privilege has not been established.”

Madame Speaker, based on the procedural criteria I have just described, I believe you will find that the application must fail. However, I also address the substance of the allegations as best they can be understood from the member’s submission.

[1340]

Dealing now specifically with the statement made by the Minister of Advanced Education, the first part: “There’s no shortage of outlandish comments that I can attribute to the member for Vancouver–Point Grey, and this is certainly another one of these.”

This certainly represents a general rebuttal of the accusations made by the member for Vancouver–Point Grey and for that reason alone, I would suggest, fails any test of privilege.

I might observe, however, that within the very report that the member from Burnaby cites in support of her submission, there exists specific information and findings which would support the Advanced Education Minister’s position. At page 8 of that report, which has already been provided to the Chair: “From a review of documentation and through interviews, it appears that neither KPU’s board of governors nor its administrative staff were aware of the terms of Lavack’s offer letter and agreement or the pre-employment contract.”

Then later at page 11: “My review did not reveal information to suggest that the then board of governors was aware of the Lavack offer letter of employment or pre-employment contract.”

Madame Speaker, I would submit that this is entirely inconsistent with the member for Vancouver–Point Grey’s assertion that the minister had personal knowledge of the executive compensation matters.

Similarly, the report prepared by Mr. Mingay dated June 13, 2014, also provides information and findings that are determinative, in my view, of the question as to whether the House was misled at all, much less deliberately misled.

In the second part of his answer, the Advanced Education Minister replied as follows. “KPU certainly reports all their earnings. Like I said before, anything that’s earned over $75,000 is reportable — reportable to the taxpayers of B.C., and it’s available for all to see.”

In his report, on pages 10 and 11, Mr. Mingay writes as follows. He asks the question: was disclosure consistent with PSEC’s compensation reporting guidelines?

“Yes, in relation to salary and other benefits. The amount paid under the pre-employment contract was disclosed as an amount paid to a supplier of services pursuant to the Financial Information Act. KPU maintains that in doing so, it fully met its obligations. However, in my view, it also would…reasonably have been considered to be compensation, so it should also have been disclosed under the compensation reporting guidelines.”

At page 21 Mr. Mingay concludes as follows.

“It is the position of KPU administrative staff that KPU did disclose the amounts paid to both Dr. Lavack and Dr. Davis under their pre-employment contracts in the statement of financial information prepared pursuant to the Financial Information Act. In my opinion, more detailed disclosure under the guidelines was required to comply with the PSEC compensation reporting guidelines.”

So whilst I appreciate that the member for Vancouver–Point Grey and his colleagues have their own views concerning the adequacy of the disclosure undertaken by Kwantlen Polytechnic University in these circumstances — and to be sure, Mr. Mingay in his report goes on to make specific findings and recommendations on that question — I would again repeat my submission. A dispute between members as to an allegation of facts or an interpretation of facts, in the absence of evidence of an intention to deliberately mislead, does not constitute a breach of privilege of this House.

There is, Madame Speaker, in my view and submission, no such evidence. In fact, I would suggest that in this case there is abundant evidence, ironically provided by the member for Burnaby–Deer Lake herself, to the contrary. Accordingly, I would respectfully submit that the member’s application should fail.

Madame Speaker: I thank you for the submission. I will carefully consider the submissions and take the items under advisement.

Thank you both for your submissions.

Hon. M. de Jong: Continued committee stage debate on Bill 2.

[1345]

Orders of the Day

Committee of the Whole House

BILL 2 — GREENHOUSE GAS INDUSTRIAL
REPORTING AND CONTROL ACT

(continued)

The House in Committee of the Whole on Bill 2; D. Horne in the chair.

The committee met at 1:46 p.m.

On section 22 (continued).
[ Page 5279 ]

A. Weaver: Resuming to section 22, if we look at subsection (5) of section 22, it talks about a list of persons who are included here. It’s “a director, receiver, receiver manager, officer, employee, banker, auditor or agent of a person who is the subject of an inspection under this section.”

My question here is: are there any employees who are exempt from this list? Is this list inclusive, or are there additional people who may have to be included in such a list at a later date? If so, what is the process to do that?

Hon. M. Polak: It is intended to be comprehensive and to cover anyone who may be in charge of information relevant to an inspection or investigation. It does mirror similar compliance and enforcement legislation that we have on the books, and of course, the term “employee” is pretty broad and pretty all-encompassing.

A. Weaver: Under the same subsection might the minister describe what is meant by or is expected by the terms “without charge” and “unreasonable delay”? How does that apply, and what does unreasonable delay mean in her mind?

Hon. M. Polak: With respect to that portion of section (5), “without charge,” they are not allowed to charge a fee for providing that information. The “unreasonable delay” is the usual test of reasonableness. It needs to be reasonable with respect to the time taken as compared to the request that has been made. So if there was some dispute about that, the test that the court would apply would be that of reasonableness based on the circumstances.

Section 22 approved on division.

On section 23.

[1350]

A. Weaver: With respect to the administrative penalties, I have a couple of questions here. Might the minister possibly describe what is the size or scope of the anticipated penalties? For instance, if they are monetary penalties, what sort of magnitude are we talking about here?

Hon. M. Polak: They are intended to be or they will be financial penalties. Again, the usual process will apply. The act, assuming that it is passed by this House…. Then a fee paper would be developed. That would be taken through the Treasury Board process.

S. Chandra Herbert: Would the intention of the administrative penalties be such that they are much higher than how much a company might save if they tried to game the system? Of course, the concern is that you want to ensure the penalty is big enough that people don’t profit if they break the rule and pay a little bit less to get around it.

Hon. M. Polak: That’s always the principle that one attempts to apply to the initiation of administrative penalties of this nature, but I’d be unable to provide the member with any kind of a quantum until it goes through the process.

A. Weaver: If the penalties are deemed to be insufficiently high, what’s the process or feedback back into government, back through Treasury Board, to determine a value or rate at which a penalty might be deemed appropriate so as to serve as actually a deterrent, as opposed to something that somebody might be just willing to pay. Is there a process documented somewhere as to how that would feed back to future Treasury Board decisions?

Hon. M. Polak: It’s no different from any other kind of penalty that is levied. There are any number of ways.

A person could do something as simple as coming to their local MLA and saying: “I think this is egregious and terrible, and you guys should change it.” That member could perhaps take that concern forward to Treasury Board. It could be something that ends up in a dispute in court, where a company decides they dispute the amount that’s been charged and they ask the court for remedy, alleging that the fee is too high, that it’s unreasonable, what have you.

So any number of ways, but not any different than any other schedule of administrative penalties that we have in place.

A. Weaver: Further, the legislation outlines in quite some detail what the outcomes are in case a report is not submitted on time — the operator fails to submit it on time — or it’s inaccurate. My question, then, is: what is government’s recourse, and what is the procedure for recourse, in the case that penalties are not paid in full and on due date as assigned?

Hon. M. Polak: Again, it’s similar to what takes place, for example, under the Environmental Management Act. If there’s not satisfaction with respect to a company paying their penalties, then we can escalate that to court. We can seek injunctions or seek orders.

Section 23 approved on division.

On section 24.

A. Weaver: I was wondering if the minister might be able to help me out here. I find this very unusual language. I recognize that it’s probably embedded in other legislation, but the term “on a balance of probabilities” is used here. Now, I recognize that there may be some legal context for this, but certainly from a scientific context, that makes no sense. I was wondering if the minister might actually let me know what specific criteria are used to determine on a balance of probabilities.
[ Page 5280 ]

[1355]

Perhaps this should be addressed to the Justice Minister, because I don’t know what this means in terms of a legal term. I suspect it has important ramifications for decision-making in light of the fact that if there was a scientist to be reading this, they would actually look at this with eyes glazed over, recognizing that…. What does that mean? It’s not on balance of probabilities; it is a probability with specific criteria. Beyond that probability, you would make a decision.

I seek leave to make an introduction.

Leave granted.

Introductions by Members

A. Weaver: In the gallery have just joined us 44 grade 5 students from an elementary school in my riding, Glenlyon Norfolk School. They’re accompanied by two teachers, Mr. Brooks and Ms. Wallace, and their junior school principal, Ms. Bigelow. I’m wondering if the House here might welcome them warmly.

Debate Continued

Hon. M. Polak: Given the number of sections where we have encountered an apparent divergence of views between the scientific community and the legal community, it almost seems like we should engage in some kind of summit between the two to get the language correct.

Interjection.

Hon. M. Polak: No, no. Lawyers and scientists all in the same company?

Now, it is language common to very many pieces of legislation. It is the standard test when it comes to civil law, as opposed to what would be in criminal law, which would be “beyond a reasonable doubt.”

A. Weaver: The next question is me trying to understand. If the minister could please clarify the difference between subsection (1)(b)(i) and (ii), and how the director is expected to calculate the balance of probabilities in the case that they do not receive a compliance report from a regulated operation.

Hon. M. Polak: The purpose of including the phrase “on a balance of probabilities” in (b)(ii) is to ensure that the test is clearly outlined. It isn’t simply up to the director’s personal opinion. The director must be satisfied in weighing some evidence back and forth with respect to the determination as to whether or not the operator has failed to meet their obligations.

A. Weaver: On that note, it does refer to a “reasonable excuse for the inaccuracy or failure.” I’m wondering if the minister might let us know what would constitute a reasonable or good excuse.

[1400]

Hon. M. Polak: Again, the standard test for that evaluation is: could a reasonable person come to the same conclusion?

A. Weaver: I must follow up on that. I recognize I’m not a lawyer, but my definition of a reasonable person would clearly be somebody who would be on this side of the House over in this corner here. Perhaps the government’s definition of a reasonable person might be someone who’s on that side of the House over there. My friends to my right here might determine a reasonable person is down that side of the table. My independent colleague in front might have an entirely different definition of reasonable.

Might the minister possibly clarify what she means by reasonable? Does it mean somebody on that side of the House?

Hon. M. Polak: Thankfully, we don’t have to only rely on what I think is reasonable. As the member points out, very many reasonable people could come to different conclusions. Remember, though, what we are about in this House when we are passing legislation. Ultimately, you are creating a framework through which any disputed elements could be ultimately decided by a court in judicial review, for example.

To the member’s question: who decides what is reasonable? If there’s a dispute as to what is reasonable, that would ultimately be determined by a judge who would look to this statute and see that the test that must be applied is reasonableness, that being defined in the section. So again, over to our legal friends who, over these many generations, have developed this framework.

I can assure the member that the reasonableness test is at work each and every day when ministers have to confront decisions and are advised that that’s the test in front of them.

A. Weaver: I’m sure we can all agree that all lawyers are very reasonable people, so I take it with….

Two final questions on this section. What is the time frame that the minister expects the administrative penalty notice to be served to the operator on?

[1405]

Hon. M. Polak: There are additional provisions in the act when we get on to section 41 in part 6, “Notice and service under this act.” It’s probably worth noting, though, at this juncture that although a notice might not be provided to the offender on the day when the
[ Page 5281 ]
non-compliance begins, fines and penalties are levied retroactive to the date when the offence began.

A. Weaver: A final question. It may be relevant to postpone this to section 41. I’m not sure. But my question is: is there some kind of appeal process attached to this as well that the operator may actually challenge and file an appeal?

Hon. M. Polak: The act does allow for appeals through the Environmental Appeal Board, and that, again, we will deal with further on in the act.

Section 24 approved.

On section 25.

A. Weaver: Under subsection (1) of this section it talks about provisions through regulation. I was wondering if the minister might perhaps provide some detail as to what other provisions she’s anticipating prescribing in this regulation or whether or not this regulation is simply being transported from another piece of legislation.

The Chair: The class from your riding is very privileged, as they saw a section actually pass.

Hon. M. Polak: In this section it lays out the discretionary powers and under which authority the director has discretionary powers — providing, in this section, that the director only may act in his or her discretion under the direction of what is contained in the act or the regulations, so cannot choose outside of these areas to act with discretion.

We’ll see further on, I believe, that there are specific areas…. Or was it previous? In the previous section, in section 24, the contrast is that in those instances the director is compelled to act. In these circumstances the director may exercise discretion. But again, as stipulated in sub (1), that must be done in accordance with the act and the regulations, so not that there would be specific regulations for sub 25(1) but instead outlining that any of that discretion must take place within the confines of the act and its attendant regulations on the whole.

A. Weaver: I think the minister recognizes where I was going with this and my concern. It appears in this particular section that the director is actually being given rather strong powers, so I have a question here. What oversight is there to ensure that the director does not actually abuse his or her powers in this regard, if a person has actually not followed the prescribed provisions that were listed in regulation?

[1410]

Hon. M. Polak: It’s actually the other way around. If you look at section 24, here are the circumstances under which the director must act.

It’s not that the director in section 25 now has an even broader area where he can begin to act and do all sorts of terrible, egregious things to people. It’s that under section 25 there are, outside of the areas prescribed where he must act…. Anything else, he or she can actually decide not to act, can decide that based on the particular circumstances, the discretion is reasonably exercised to say: “No, in this particular instance I’m not going to act in that way for compliance.” So it’s actually the reverse.

You’re being very strict as to…. Here are the areas where you absolutely have to act, and outside of that, you don’t have to. You don’t have to move in and call somebody to account through compliance.

Section 25 approved.

On section 26.

A. Weaver: I’m learning a lot about this act as we proceed, so I thank the minister for her patience. I thank the Chair for his patience, and I thank the staff who are also helping us get through this.

Under subsection 26(1)(a), I’m wondering if there are any case studies that can support the likelihood of an operator admitting in writing to non-compliance under this type of regulatory regime.

Hon. M. Polak: The best example I can give is perhaps in the reporting of a facility. They notice that a report they submitted to us six months ago has a typo in it, and instead of a six, it has a seven. They notify us: “Gosh, we’re sorry — just noticed this.”

[1415]

That adjusts our reporting accordingly in that instance. Then the penalty, rather than being applied from the six months previous — the daily levy of penalties…. Instead, the director can impose the penalty from the date that the admission was made.

It may be an innocent mistake. Nevertheless, the penalty would apply, but it would apply from the date that they made the admission.

A. Weaver: I’m trying to understand subsection (3) as well, which seems to indicate that the penalties assessed to companies will be in the form of them having to retire compliance units and that these funds will then go towards offsets. I may be mistaken, but I’m hoping subsection (3) could be clarified by the minister for me here.

Hon. M. Polak: I will first address why you would even have a provision like this. It goes back to the discussion we had around how the holder of compliance units must handle and report those. If the non-compliance
[ Page 5282 ]
was with respect to how they handled and reported their compliance units — and in this case we’re talking here about retirement of them — then the penalty, for example, could be that for every one unit that you got wrong, you’re going to have to not only replace that unit. But your penalty is you’re going to have to surrender two additional units.

The reason for that is because, of course, compliance units are subject to market fluctuation in prices. So if one set a price as opposed to the units themselves, you could end up in a circumstance where the price is far less costly than the current going rate for a compliance unit. That’s the reason to have the provision.

In terms of the time limit, it’s simply to ensure that it’s done in a timely way because, of course, for the period of time during which the penalty is being administered…. Between that time and the time at which those units are surrendered, the holder is getting a benefit from having them. There’s a point…. Just as your parking ticket, which I’m sure you’ve never had, you have to pay it within a certain amount of time.

A. Weaver: I wanted to thank the minister for that very comprehensive answer. It was very clear for me.

I will say I have no further comments on this section or the next section, hon. Chair.

Sections 26 and 27 approved.

On section 28.

[1420]

S. Chandra Herbert: As we know, directors of corporations have at some times in history been held responsible for negligence, for failures, whether it be industrial accidents or pollution and other incidents. I can’t say that I recall too many instances under this government, but I do know that in the past it has been discussed making this happen.

I’m curious. How do we ensure that this actually is followed through on? What kind of special investigations staff would be required? How do we ensure that the government actually has lawyers trained to prosecute these instances to ensure that nobody walks away unscathed if they have created a problem of pollution or a clear breaking of the laws in this province?

Hon. M. Polak: Section 28 simply ensures that, in the case of this act, joint and several liability applies, and that that applies in spite of an administrative penalty that may have been levied.

With respect to enforcement through the courts, that is something that is done across government under very many different statutes that govern compliance and enforcement. It would be no different than any other subject matter. I know that the Attorney General could probably list off hundreds, if not thousands, of topics that the legal team in that ministry have to contend with, and there’s always the option for government to seek outside legal counsel if it’s a matter that is just far outside the knowledge of anyone that would be available within government.

A. Weaver: I was wondering, in reading this section, if the minister could help me and please clarify whether or not this section is actually indicating that a penalty could be imposed on an employee of a corporation regardless of whether or not a penalty is imposed on the corporation itself.

Hon. M. Polak: The point here is not that an administrative penalty could be applied more broadly than has already been laid out in the previous sections. The point here is that just because the company has been served with an administrative penalty, it doesn’t allow the employee, the director, the officer who, as it says here, “authorized, permitted or acquiesced in the failure….” It doesn’t let them off the hook. They are still liable for that particular offence.

S. Chandra Herbert: I must say, I do like the sounds of this section. I think it’s important.

Hon. M. Polak: I knew you would come around.

S. Chandra Herbert: Tough on environmental crime. Tough on crime. Yes, hon. Minister, I think that is an important attribute because the rule of law is something we must all abide by. I think too often we have turned the other cheek when it comes to environmental crimes and environmental pollution because it may not be a crime that we think harms us, but indeed, of course, if you harm the earth, you harm our home.

I just want to commend the minister for going beyond what is often the case, of just going after the corporation or the company, but actually going after those within the corporation who permitted these activities to occur.

Nothing further on this section.

The Chair: Shall section 28 pass?

A. Weaver: Division.

The Chair: On division or…?

A. Weaver: Division.

The Chair: All right, division has been called.

[1425-1430]

Section 28 approved unanimously on a division. [See Votes and Proceedings.]
[ Page 5283 ]

A. Weaver: Shall I — with your leave, Hon. Chair — give people a couple of minutes to attend to their other duties as they are wandering around here, or shall I continue on?

The Chair: We can take a short recess.

The committee recessed from 2:33 p.m. to 2:37 p.m.

[D. Horne in the chair.]

Section 29 approved.

On section 30.

S. Chandra Herbert: Of course, as we discussed earlier, the concern is always that the fine for the crime is bigger than the bonus you might make by breaking the law. Certainly, I know in other areas of law, that’s not always been the case. Some see breaking the law as just the cost of doing business. Of course we don’t want that to occur, as was made very clear.

I would love it if the minister would be able to share how they came to the decision to put in section (5): “A person convicted of an offence under subsection (1), (2), (3) or (4) is liable to a fine of not more than $1 500 000 or imprisonment for a term of not more than 2 years, or both.”

I ask that because, of course, with some industries, $1.5 million could be made in a couple of hours, depending on who you believe. According to the minister or the Premier, we’re going to make billions of dollars almost instantly from the LNG industry, so of course $1.5 million doesn’t seem that much when you consider how much money could be made in an industry and, for a certain amount of time, breaking the law. Just curious.

It sounds like a lot of money — $1.5 million — right now. But if you put it up in context of how much money could be made by some industries in a short period of time, it may actually not be that much. I would be interested in how that figure was arrived at.

[1440]

Hon. M. Polak: These penalties have to be consistent with the nature of the offence. Of course, reading through the section, these are offences relating to reporting, breaches of confidentiality, etc. They are also made consistent with other statutes under the natural resource sector.

S. Chandra Herbert: As I understand it, this is just a set amount that is normally used in these circumstances. Was any review given to see whether or not that amount needed to be increased? Of course, with inflation, as it goes, that amount decreases over time in relation to the total value of the dollar.

Hon. M. Polak: Sadly, I’ve been in this place long enough that, although I’m not a lawyer, I actually found myself understanding this. I’ve been here too long, I guess.

An important distinction here. We’ve been discussing administrative penalties. Those are automatic. They are levied by us, and they can be appealed through us, through the Environmental Appeal Board. Ultimately, they could be appealed in a court of law through judicial review, or, in the reverse, if we were trying to collect something, we could seek an order.

In this case, this sets out the provisions for an offence. An offence is something that a person would have to be convicted of in court. We apply the penalties that you see here, or the judge applies the penalties you see here, consistent with other, similar types of offences. The way we approach that in constructing an act is to work with the Attorney General’s ministry to ensure that whatever penalties we have outlined for those offences are consistent with legal precedent and with what exists in other legislation.

S. Chandra Herbert: Would the minister be able to illustrate or attempt to illustrate some of the kinds of offences that might be considered under this section?

Hon. M. Polak: Essentially three categories: they haven’t purchased enough compliance units, be they offsets or what have you; they have not reported their emissions; or they have sought to obstruct a compliance officer in the performance of their duties.

Section 30 approved.

On section 31.

A. Weaver: Under subsection (1) of section 31, I’m wondering if the minister might be able to clarify what will be used or what criteria will be used to distinguish between “false or misleading information” and just an error.

[1445]

Hon. M. Polak: Our law enforcement in Environment operates very similarly to the law enforcement that you’d be familiar with in any town. This is an offence. Ultimately, conviction would be determined by a judge. This is the provision that outlines what it is that’s illegal, just in the same way that we have statutes on the books in Canada that say that it’s against the law to rob a bank.

If the police officer thought you had robbed a bank, they would investigate, collect evidence, recommend charges to Crown. The case would then go before a judge. It would be the judge who would determine whether or not you had actually contravened this section of the act and if, in fact, that had been proven.
[ Page 5284 ]

A. Weaver: That answer is very helpful. It presumably will also answer my second question on this, which is on the difference between “knowingly contravening” and just “contravening,” which is the difference of $1 million in the fine between sections (2) and (3). May I assume that this also will be done through the court of law and that a judge would determine that?

Hon. M. Polak: Yes.

Section 31 approved.

On section 32.

A. Weaver: I just had one quick question here to clarify, again, that this would mean that under this section the $1.5 million or…. This figure could be assessed each and every day that the company is in offence.

Hon. M. Polak: Yes, that’s correct. That’s consistent with other acts such as the Environmental Management Act.

Section 32 approved.

On section 33.

S. Chandra Herbert: This section deals with the liability of directors and officers. We’ve earlier discussed the liability of other staff or other people within a corporation who might acquiesce and permit or authorize an offence.

I’m just curious. What kind of examples does the ministry have where directors or officers of the corporation have been fined, given an offence or held liable within British Columbia? I’ve certainly read about corporations themselves being charged for compliance issues. I’ve not heard a lot about the directors and the officers themselves being held liable. If there are some examples, or if this is fairly common and I’m just not aware of it, that would be helpful for me to know.

Hon. M. Polak: I don’t have a specific example of something that has already occurred, but it would apply in this way. If, for the sake of discussion, one of the offences we spoke about — obstructing a natural resource officer, a compliance officer…. If a company had been successfully prosecuted for committing that offence, that would not stop a separate prosecution of an individual if there was enough evidence to lay charges that that individual had, in the words of the act here, “authorized, permitted or acquiesced in the offence.”

They would be subject, potentially, to individual prosecution in spite of the fact that the company had already been prosecuted and convicted.

S. Chandra Herbert: Would this also apply in a case where a company broke the law, didn’t report properly, did a variety of things — and then was found guilty, but was bankrupt? Then the liability could potentially be passed on to the directors? Is that a consideration here?

[1450]

Hon. M. Polak: Yes, the individuals would be liable in that case, or could be found liable in that case.

S. Chandra Herbert: I’m curious. Subsection (2) says: “Subsection (1) applies whether or not the corporation is prosecuted for or convicted of the offence.” Is this saying that, basically, it gives the prosecutor the leeway to go after a corporate director who maybe broke the law, but the corporation itself didn’t?

I’m just trying to visualize what that could look like if the corporation followed the law and reported properly, but a director didn’t. I’m just trying to understand how that would work.

Hon. M. Polak: A couple of circumstances I can provide as an example. I’m sure it’s not exhaustive. Firstly, if, for example, you had an employee who, in spite of direction from the company, nevertheless, still obstructed the activities of an inspecting officer — even though the company itself had clear policy, given clear direction — that individual could be found to have committed an offence.

This would also apply in the case where years have gone by and the company no longer exists but an individual still is alive and well and a prosecution can be launched.

Section 33 approved.

On section 34.

A. Weaver: I was wondering if, under subsections (1), (2), (3)…. Could the minister please clarify if my understanding of this is correct? An administrative penalty can later result in an offence conviction, but an offence conviction cannot be later followed by an administrative penalty. If so, why is this the case?

Hon. M. Polak: With respect to sub (2), the judge, in considering what penalty to impose, is allowed to consider the fact that this individual or corporation may have already been subjected to an administrative penalty. They can take that into consideration.

Subsection (3) is the issue of double jeopardy. If they haven’t already been levied an administrative penalty and then they are prosecuted and a penalty is applied, you can’t then retroactively go back and apply an administrative penalty that you didn’t apply before.

Section 34 approved.
[ Page 5285 ]

On section 35.

A. Weaver: I just have a couple of very short questions on the numbers three years and 18 months. My first question. The two different time periods, three years versus 18 months — are these consistent with other time periods in other acts under the minister’s portfolio, or under Energy and Mines, with respect to offences? Or are these different, unique to this act? What is the motivation for coming up with these, the justification for these particular numbers?

[1455]

Hon. M. Polak: They are consistent with provisions across the natural resource sector.

Sections 35 and 36 approved.

On section 37.

S. Chandra Herbert: Application for investigation. This section seems to define how you would go about asking for an investigation into a company or a business that is breaking the law — applying to the chief conservation officer. You must be at least 18 years of age.

I’m just curious. What happens if somebody believes there needs to be an investigation into a company but perhaps they work within that company? A whistle-blower, so to speak, applies to the government stating their name and address, the nature of the alleged offence and the name of each person alleged to have done something or to have failed to do something.

What sort of protections would exist for such a person, given that it may be difficult for the average British Columbian to look at a business and say, “They are breaking the law by polluting too much and not reporting appropriately how many million tonnes of greenhouse gases they are emitting” — since it’s not something that, of course, is easily obvious to the naked eye?

Hon. M. Polak: With respect to any provisions protecting individuals who approach the question of lodging a complaint, it’s not covered within this legislation. I don’t have sufficient knowledge of broad legal matters such as that across government, so I would not be able to answer.

S. Chandra Herbert: I ask because I think it’s important. Obviously, in our own offices sometimes we are approached by people who have concerns about the way things are handled. Obviously, if they are criminal in nature, then they have to go to the police.

But the reason I ask is that if the person works for the company, they may be very reticent to use this provision of the act, as it’s not clear how they are protected. Now, perhaps whistle-blower protection is stronger elsewhere. Certainly, I’ve heard mixed reviews of that from people, in my experience.

Who is the…? How do I phrase this? Would the information of who makes the complaint, who approaches the conservation service…? Would their information be shared with the proponent or with the company that they are making the complaint about, or is that a confidential process?

Hon. M. Polak: It is a confidential process. It is the same as…. In terms of the conservation officer service, they are sworn peace officers. They are, in fact, the primary law enforcement agency on the ground in British Columbia for matters of the environment, of the land. It’s a confidential matter, and the conservation officer service must handle those types of complaints the same way that a police officer would handle a complaint.

S. Chandra Herbert: It’s very specific, section 37, in that it discusses that the person “must include a statutory declaration or affirmation” that includes “…the name of each person alleged to have done something, or to have failed to do something, in contravention of this Act or the regulations, and (d) containing a concise statement of the evidence supporting the allegations.”

Certainly, I could understand why you’d need to know what the allegation was — a concise statement. However, I do know that in my time as an MLA but also just in speaking with law enforcement and others, it’s not always clear who exactly is responsible for the pollution, who exactly is responsible for breaking the law.

You may know. You may have been told “Oh, it was Joe” who decided to not report properly or to break the law. But you don’t know Joe’s full name, and maybe it’s a nickname.

[1500]

Maybe you just know that the evidence is there that the company is breaking the law, but you don’t know the name of each person alleged to have done something, or to have failed to do something, in contravention of this act.

[M. Dalton in the chair.]

Why is the minister, through this act, being so specific about what must be required? As far as I can see, an application for investigation…. If the person didn’t know the name of the person who broke the law but knew the law was being broken, they could not apply for an investigation, in the way that this is worded.

Hon. M. Polak: A few points. First of all, the point of this provision is to avoid vexatious complaints. We don’t want the chief conservation officer to spend all of his or her time dealing with vexatious complaints.

The term “person” in sub (2)(c) also means “company.” If they were alleging that an offence had occurred on the
[ Page 5286 ]
part of a company, they wouldn’t need to know the name of the individual employee involved, although if they did, they could certainly put that in the application for the complaint or for the investigation.

I should also point out that this process, as it’s laid out here, currently exists under the existing cap-and-trade act with regard to GHG reporting. A request for an investigation has to be received in this manner.

S. Chandra Herbert: Well, it does help that the minister has explained that in this reading, the word “person” also means “corporation” or “business.”

I, of course, believe a person should be alive. Yes, while corporations may have been ruled by the law to be persons in the understanding of how the law applies, I fundamentally disagree. I have real trouble thinking that a corporation is a person with the same rights as you and I, because corporations can live forever and you and I cannot, of course, unless we come up with some new science down the road or if you believe a different spirituality.

I wonder why it’s not defined in the name of each person or corporation alleged to have done something, just for clarity, because most persons that I know would never think of a corporation as a person.

Hon. M. Polak: The important thing here, though, is direction that is given through the statute to a judge who would rule in a case.

If you follow through as we go forward, you will see the term “person” used over and over again. Now, it may offend our sense of personhood to be mentioned in the same terminology as some large multinational corporation. Nevertheless, under the law this would be interpreted by a judge in the appropriate way.

V. Huntington: In 37(2), I notice that the legislation is requiring a statutory declaration in this application for investigation, but I’d like to remind the minister that much of this activity will be taking place in the north, if not the far north. There are many communities, whether they be native communities or not, that just simply don’t have access to a notary. I think this is a substantive impediment for presenting or applying for an investigation in a reasonable manner.

I can see that you would want to avoid vexatious requests, but I think a formal application requiring the information in (a) to (d) would be sufficient. I really know, having lived in the north, that requiring a statutory declaration would just put a stop right there for many, many people.

Hon. M. Polak: This provision would not require someone to find a notary and have a notarized document. It simply ensures, much in the same way as we discussed with respect to ordinary — I shouldn’t say ordinary — police officers that we’re all familiar with, if you wished to see charges laid or investigation occur with respect to something that had happened to you, you would, as we are familiar with the term, swear a complaint.

[1505]

It is a statutory declaration or affirmation. It does not require that the person attend a notary or anything like that. It is the same process that you would undergo if you were swearing a complaint to a police officer.

V. Huntington: So it’s just basically the requirement of a signature above a declaration, an oath.

Section 37 approved.

On section 38.

A. Weaver: Hon. Chair, welcome to the seat. We’ve enjoyed the previous Chair engaging in the many questions we’ve had, and we look forward to similar enjoyment working with you.

I have a couple of questions on section 38. The first one, a simple question, is…. In the definitions, “conservation officer” is defined under the Environmental Management Act. May I assume that “chief conservation officer” is also defined under the Environmental Management Act?

Hon. M. Polak: Yes, that’s correct.

A. Weaver: I’m trying to understand the relationship, if any, between the chief conservation officer, conservation officers and inspectors. Is it possible for the chief conservation officer to be an inspector or for an inspector to be the chief conservation officer?

Hon. M. Polak: In the case of the kind of application we’re discussing here, the chief conservation officer would investigate as is appropriate and could, in that case, be the one gathering evidence and could ultimately recommend charges to Crown.

In the case of an inspector out in the field — the chief conservation officer could be acting in the role of inspector — who could come upon information in the course of that inspection that would…. In the case of an inspector who was not the chief conservation officer, if that inspector came upon information evidence that led them to believe that charges should be considered, then that information evidence would be taken to the chief conservation officer, who would be tasked with evaluating that and considering whether or not to recommend charges to Crown. But the conservation officer could also be acting in the role of an inspector or vice versa.

V. Huntington: On 38(b) is there a threshold or are there criteria anticipated in the regulation that would stipulate how the chief conservation officer should consider whether he should undertake an investigation?
[ Page 5287 ]
Here it says: “…considers necessary to determine the facts….” Is there a threshold for that determination?

Hon. M. Polak: They are trained peace officers, so they operate in the same manner that a law enforcement officer would in a local community. They follow their training, and they use their discretion.

Section 38 approved.

On section 39.

A. Weaver: On section 39(2), I was wondering if the minister might clarify — this could also apply to 38, but I left it for 39 — whether an individual who submits an application for investigation under section 37 has any recourse to challenge a ruling or decision by the chief conservation officer in the event that the individual disagrees with the officer’s decision to discontinue an investigation?

[1510]

Hon. M. Polak: My understanding is that in the case where they disagree with the decision of the officer, they could lodge a complaint similar to — if one were to disagree with the decision of a police officer and the results of their investigation.

S. Chandra Herbert: Just to follow up on the question from my colleague from Oak Bay–Gordon Head. They could lay a complaint that the investigation was done poorly. Where would that complaint go to — the police complaints commission? How does that work?

Hon. M. Polak: I don’t have that information with me, so I would have to seek confirmation as to how a complaint process like that would proceed.

What I can say, though, is that in these matters, whether or not the process is under the Police Complaint Commissioner, the principle of what we’re going through in these sections is the same as what operates with respect to law enforcement officers broadly. They are expected to conduct themselves in accordance with their appropriate statutes, training, etc. It would be a very serious thing for them to act improperly, but the law enforcement aspect of it is at their discretion.

S. Chandra Herbert: Yes, this could be asked under 38 or 39. The reason I ask it is I’ve heard from folks who don’t know who to go to sometimes and have asked that question. If there is a conservation officer who is, I don’t know, acting like a cowboy and not listening to the rules, who do they go to?

I would hope that the minister’s staff are able to get her an answer pretty quickly, because it is fundamental. If it’s just a question of, “Well, you can send a letter to your local MLA,” that’s very different from, “You can send a letter to the police complaints commission,” where a full investigation would take place.

Currently I’m sitting in a separate role on the special committee to look at the independent investigations office. That’s around very serious incidents. These, of course, may be very serious as well — just not police-involved shootings or deaths or those kinds of things, but still serious, around environmental crimes.

Interjection.

S. Chandra Herbert: Yes, not firearms, for sure, although we may, of course, be polluting by fire into the atmosphere — a little different, but an assault on the earth as opposed to an assault on a person.

If it is possible to get that answer, I would really appreciate it. I would have expected it would have been well known within the Ministry of Environment — who it goes to when there’s a complaint against the chief conservation officer or the conservation officer’s staff and what the exact process is. Either they’re doing such a good job that we’ve never heard about it, or nobody knows about it because the process just really isn’t well known, and it’s not used well because of that. So if that is possible, I would appreciate it.

Conservation officers play a very important role in our communities, but I think that they, too, would want to ensure that the public had trust — that if there was misconduct from a colleague, the public would have an independent place to go and that it wouldn’t simply be one conservation officer investigating another conservation officer’s conduct.

Is that possible, hon. Minister?

Hon. M. Polak: In the interest of accuracy, we are contacting the appropriate department to ensure that we can provide the correct answer.

[1515]

While I take the member’s point that one would hope that these things are widely known, nevertheless — in defence of my staff — these are staff who specialize in issues around climate action, not around law enforcement on the land base or complaints against law enforcement officers. We will endeavour to get that information for you.

S. Chandra Herbert: Yes, of course, full respect to the staff. I know one of them is relatively new to government and has been thrown right into it right from the start and is doing a very able job, from what I can see, in being able to provide the minister with some very detailed answers on some very detailed parts of law. Of course, this is about the enforcement of that law and ensuring that it’s enforced fairly and that it’s seen to be enforced fairly and that complaints about conduct of those who are charged with investigating are actually seen to be done and are done well.
[ Page 5288 ]

In terms of discontinuing an investigation, I understand that there is the provision here that, of course, if the investigation isn’t finding anything…. Maybe it’s particularly well hidden. Maybe nothing happened at all. And that does happen. Certainly, I’ve got a number of friends who are police officers and share those details with me — and those who are lawyers who look into these matters.

I’m curious. What is the timeline, if any, to provide those who’ve been alleged to have broken the law with a report saying: “Oh, actually, we investigated you. And no, it turns out that you didn’t and that we weren’t able to find any proof to the allegation made against you”?

I ask that question because there are, of course, instances, including in this own House, where people may find that they are being investigated but had no knowledge they were being investigated — which, of course, is important. You don’t want people to always know that they’re being investigated, as they may change their behaviour or hide what they were up to. However, it is important that they are told — before media or others may get hold of it — that they’re under investigation when they may not even know they were under investigation or that they’ve been cleared by an investigation.

Just curious if the minister is able to share that information with me.

Hon. M. Polak: It depends on the nature of the investigation. In some circumstances the fact that an investigation exists is not disclosed because it could jeopardize that investigation or other matters. So it depends on the nature of the investigation. Again, that is where we rely on the expertise of our law enforcement officers.

S. Chandra Herbert: Is this also possible? The chief investigator may say, “I’m not going to continue the investigation. I don’t have enough information. However, there was enough there that I’m going to create a cold case” — as they say on TV, where it sits and waits for some whistle-blower down the road. Or, I don’t know, as they do on TV, an envelope shows up which provides new proof years later. Or somebody in a deathbed conversion admits to what’s going on. All of a sudden the investigation is anew. Does this allow that to happen?

Hon. M. Polak: First, I’ll deal with the previous question about the conservation officer service. There is a public complaints process, and that information is on our ministry website. If, of course, the chief conservation officer him or herself was implicated, then it would have to be a delegate that conducted the investigation into that matter, not the person themselves. They’d have to delegate someone else with the appropriate authority. But it is a public complaints process, and the information is on our website.

[1520]

With respect to the question about time frame, I do think, though, at this stage it’s important for us to remember what types of offences we’re talking about, right? They didn’t purchase enough offsets or units, they didn’t report their emissions, or they obstructed the investigation or inspection, the duties of a conservation officer. It’s unlikely that we’re going to find bodies in the attic after a number of years.

I just think it’s one of the realities of creating legal statutes that you also need to consider the nature of the offence you’re discussing here and the likelihood of certain circumstances arising.

You couldn’t possibly write down in law every single circumstance that could possibly apply. You attempt to construct legislation that has the right balance of specificity with the flexibility to respond in new circumstances that weren’t contemplated. But again, we have to remember we’re really not talking about…. I mean, serious offences in terms of disobeying the statutes but, nevertheless, unlike, say, cold case investigations — for example.

Section 39 approved.

On section 40.

A. Weaver: I was wondering if the minister might outline the types of decisions that she foresees prescribing under subsection (1)(c).

Hon. M. Polak: Under sub 40(1)(c), firstly, any of those items we’ve been discussing where the director has prescribed something. But in addition, this enables us in the future, or enables the director, to prescribe something else that we haven’t already listed in (a) and (b).

Sections 40 and 41 approved.

On section 42.

S. Chandra Herbert: I appreciate that this section refers to the Freedom of Information and Protection of Privacy Act, as it had been a question that was raised earlier. Of course, it was regarding the tech fund, but this act is quite wide-ranging. I’m wondering if the minister may describe what she feels this section does in relation to protecting information.

[1525]

Hon. M. Polak: Here’s how this operates. Subsection 42(1) is the definition specific to this section, so sub (1), definitions. Sub (2) is what provides that all of these different activities and information that we’ve been discussing under this act are governed by the Freedom of Information and Protection of Privacy Act.

Then sub (3) specifically exempts certain specified items from protection. Sub (3), even though, perhaps, the
[ Page 5289 ]
ordinary interpretation of the Freedom of Information and Protection of Privacy Act might afford protection of the information mentioned in sub (3) — and I guess (4) as well, if I’m reading it correctly — we’re saying here that specifically, we, through this act, are removing that protection. These items must be disclosed.

S. Chandra Herbert: That is a helpful description and certainly how I read it. I guess the question is: has this been vetted by the Privacy Commissioner? I’ll leave that there.

Hon. M. Polak: In fact, provisions in this act were vetted, revetted and revetted again. There was a tremendous amount of work that was undertaken to line up with recommendations from the commissioner. I could not say that she would 100 percent agree with every jot and tittle in the act, but I think we’ve got it pretty darn close to what she wanted to see.

S. Chandra Herbert: Am I to understand that this section, then, was not in the original cap-and-trade act?

Hon. M. Polak: It is similar to what was in the cap-and-trade act. I would say we have, to a certain extent, improved it, based on the experience that we have had with the cap-and-trade act.

S. Chandra Herbert: What is the experience that the minister refers to that led to these improvements? What are the improvements specifically?

Hon. M. Polak: It would take some time to go through each and every item, but I think that I can answer sufficiently by saying that in some cases it’s a matter of wording that was no longer appropriate. For example, we won’t be using a compliance unit tracking system, so that didn’t need to be language that we used. In other cases, it’s simply providing that sub (3) would now have much greater specificity, in some cases, as to what exactly we were causing to be disclosed.

[1530]

S. Chandra Herbert: I appreciate the assistance.

I’m curious. In the first sub (1)(b) it discusses that “protected information” means information that would reveal “commercial, financial, labour relations, scientific or technical information of or about a third party.”

How would scientific or technical information differ from, let’s say, the scientific readings needed to understand greenhouse gas emissions or to measure — potentially, where you can — methane release at a hydraulic fracturing site? How is that determination made, or what would be scientific or technical versus what is allowed under sub (3) around “determinations of greenhouse gas emissions,” “reporting operation,” etc.?

Hon. M. Polak: They may be using a proprietary process, and the release of that information could be damaging to their business interests, for example.

S. Chandra Herbert: That is for sure a possibility. Of course, we would hope, as the minister has spoken of, that if you make an innovation and have proprietary information that maybe allows you to reduce your greenhouse gas emissions, that information would be, in a sense, shared so that we can raise the bar — or, should I say, lower the amount of greenhouse gas emissions, rather than keeping it all proprietary.

I guess that there’s a great debate — mostly in the Internet world but elsewhere as well — about Creative Commons versus restricting the right to see the information. Some say: “Let the information free” — open data and all of that.

What sort of attempts would the ministry make to help share the data, help encourage proponents, regardless of industry, to share the innovations and share that information with the public — or with competitors, in a sense — so that we can improve things rather than keep a really good thing to ourselves?

Hon. M. Polak: This, though, is about information that they are not required to disclose. For example, we’re not talking about data that is required in reporting or things of that nature. It would be, in the case that the “commercial, financial, labour relations, scientific or technical information of or about a third party.”

If the information would reveal knowledge about something that the company is not required to disclose, you can’t then not protect the disclosure of information that would otherwise reveal that, if they’re entitled to keep it quiet.

Obviously, it would be wonderful if we had sort of an open software kind of concept for technology all over the world and everything was free. In reality, though, companies spend a considerable amount of money developing new technologies and developing new equipment and new methods. I know, myself, that if I did manage to invent a better mousetrap, I’d certainly want to be the one with the patent and getting the money for it.

The same is likely true with respect to new technology that might be marketable to industry. I’m quite confident the companies would want to retain that patent. You then get into the question of what gets shared and what doesn’t. That, more broadly, is covered by the Freedom of Information and Protection of Privacy Act but also, of course, there are rules around patent and things like that.

S. Chandra Herbert: The reason that I raise it, of course…. I’ve heard from many, whether it be the geothermal folks who are keen to find out what the temperature readings
[ Page 5290 ]
are if somebody is drilling to see whether a gas play may play out…. They’re very interested. We can collect that data.

[1535]

I hear that from biologists who are interested that when you do a site survey…. Maybe you do an assessment of wildlife habits in a certain area. They would love for that information to be able to be shared, collected. While we may not have the budget within the Ministry of Environment to do as many of those studies as we would like, many corporations may have already done them for their own projects. They’ve asked me to find ways to raise the concern that that information may be there but nobody can see it. While we may have the knowledge, it’s not being as widely shared, and we’re all collectively poorer for it.

I notice that in this “Confidentiality” section, the ministry has made a provision that “protected information” does not include “information in respect of which the third party has consented to its disclosure.” I guess the question — maybe this is a wider policy question for the minister to consider, and it may be not appropriate for here, but I’ll try it anyway — would be this.

Is the minister working within her ministry to work with proponents, to work with those who are coming forward with proposals — who potentially, under this act, have good data, good information, which may not be commercially necessary to protect but is not publicly available — to make the request: “Can you provide a data set? Can you provide the reports that have led you to your decisions, where they will not harm your company’s prosperity?”

Just by signing a consent form or signing something like that to ensure that that data is available to the wider public, we can ensure that the hard work they did to get it may not just sit on a shelf collecting dust but may help us all get richer through having access to that knowledge.

Hon. M. Polak: We need to be clear here about the section. The member describes well, I think, the balance between the advancement of humankind and our technology and knowledge against the anvil of confidentiality — protected information, what should be protected, what should be disclosed. That is the purpose of sub (2). The instrument used to determine that balance is the Freedom of Information and Protection of Privacy Act.

It’s not for us in this act or even in our ministry to try and thread that needle. That has been considered by government, and it is given life through the Freedom of Information and Protection of Privacy Act. There are, I’m sure the member knows, all sorts of organizations — be they trade organizations, environmental organizations — who do make efforts to work together, and we are involved as a ministry in many of those. But that balance that the member describes is what the Freedom of Information and Protection of Privacy Act is about.

That is the reason why sub (2) places this under the Freedom of Information and Protection of Privacy Act.

A. Weaver: In subsection (1), the definition of “protected information” is given there. I’m wondering if the minister might provide some clarity as to if a process exists to allow for operations to be challenged on the basis of what they believe to constitute protected information. How does the ministry know, have access to or have an ability to challenge what a company may deem to be protected information?

Hon. M. Polak: If there’s a dispute, then that would be adjudicated based on the provisions of the Freedom of Information and Protection of Privacy Act.

A. Weaver: Presumably, that answer may also apply to this next, subsequent question — which is with respect to whether or not this bill limits the ability of an individual to report infractions or contraventions of the act.

[1540]

That is, are there limitations to potential whistle-blowers through interpretations of what is deemed to be protected information?

Hon. M. Polak: This wouldn’t change any of the existing circumstance.

A. Weaver: I’m not aware of what those existing circumstances might be. Perhaps the minister might be able to expand that a little more for me.

Hon. M. Polak: I think I’m going to answer the member’s question, if I’ve understood the question correctly.

Information that was collected in the course of an investigation, or information that we were in possession of, would not be protected when you get to sub (4). That information, even though it may have been protected previously, would no longer be protected if it’s determined that an offence has been committed and if that information is evidence of that offence having been committed.

A. Weaver: Where I’m getting with this…. My concern is that confidentiality under this legislation is trumping the ability of a whistle-blower to actually come forward with potential unlawful conduct conducted by an operator or company.

An example. It seems to me, from what the minister just said, that it may be that if this so-called protected information is brought out, brought to the government, and then there has been deemed to be an offence, that that protected information is in fact no longer protected.

However, if there is not deemed to be an offence, what’s protecting the whistle-blower in examples where there may be…? It might be very, very close to being an offence, and in fact, it could be…. Essentially, what I’m worried
[ Page 5291 ]
about is that we’re creating barriers to whistle-blowers bringing forward information about unlawful behaviour through the inability to protect them from doing so.

I worry that these definitions and this particular section actually trump whistle-blowers in favour of corporation-protected information.

Hon. M. Polak: The distinction here, though, is that the prohibition is not against disclosing information to an appropriate investigator. You’re not prohibited from doing that. You are prohibited from publishing it. You couldn’t put it on the front page of the Vancouver Sun, but you could certainly go to the chief conservation officer or other law enforcement, and you could disclose that information to them.

That’s a confidential process, and you would not be in contravention of any rules of disclosure or protection of information.

A. Weaver: I’m trying to get this very clear. I appreciate the answer. If somebody brings protected information, under the definitions here, to the chief conservation officer and that chief conservation officer deems that that information actually is protected and there is no offence, is that person still protected under the court of law from potentially revealing whistle-blower information?

It is a confidential process, but does the company involved…? Suppose questions start to get raised. Is there protection for that whistle-blower here, through this legislation?

Hon. M. Polak: If you look at sub (4), it wouldn’t be considered a disclosure under the Freedom of Information and Protection of Privacy Act if it was in the conducting of an investigation, an inspection — things like that.

[1545]

I think the short answer to the member’s question is that the fact that the person disclosed that information to an appropriate officer would not put the individual on the wrong side of the law or allow action on the part of the company against the individual for disclosing it appropriately to an investigative officer.

A. Weaver: I will defer to the member. Oh, I was going to go…. I wondered if my friend from Delta South was going to follow up on precisely this point. I would have deferred to her.

I have one final question on this section, which is under section 3. I’m wondering why the prohibition does not also apply to health and safety information that may in fact be in the best interest of the public to be disclosed?

Hon. M. Polak: That just isn’t governed by this act. There are provisions in other statutes.

V. Huntington: Just to clarify something for me with regard to the comments in section (3). When it says the prohibition doesn’t “apply to disclosure of the following information….” Therefore, to me, that would mean these are generally pieces of information that are public — the determination “of greenhouse gas emissions, or emissions of a particular greenhouse gas,” “a reporting operation or regulated operation,” etc.

Where is all of this information to be recorded? Is it all going to be in the registry and available at any time to the public? Is it going to be controlled and monitored and posted by the Oil and Gas Commission? Where, in fact, is this information that everybody will be interested in going to be available?

Hon. M. Polak: To be clear, that aspect of things doesn’t have anything to do with this section. This only determines where that line is drawn — the provisions requiring that this information be protected. The ordinary provisions of FOIPPA apply, except with respect to this information.

If you look down the list of the various specific instances where the protection will not apply…. Take, for example, (3)(d). Well, there’s all sorts of information under this act or, if you want to look at here, the Ministry of Environment Act. That’s extremely broad, so it covers all sorts of information that could be posted in all sorts of different places.

We do have provisions in the act that we’ve been through, some of them around reporting and requirements and things like that, but in this particular section it’s simply dealing with the exceptions in terms of information that would otherwise be protected.

If we didn’t include that sub (2), where we place this legislation under the Freedom of Information and Protection of Privacy Act, then you would inadvertently create a protection over these materials.

[1550]

V. Huntington: I appreciate the minister’s reply, and I understand that part of it. Perhaps my question is too broad for this discussion. Somewhere along the way I’ve missed where information that will be of interest to the public, like emissions data, control data, reporting data…. If the minister is able or willing to answer this broader question, where does she anticipate that will be stored and accessible to the public?

Hon. M. Polak: The provisions in this act, in terms of reporting and the reporting of data, have already been in place for a number of years. Even if you go to Google and type in “B.C. GHG reporting 2013,” you’ll get all the 2013 numbers for all the industrial sectors. So all of that is already currently publicly reported, and it’s done so annually, specifically when we have completed a review of the reports for their accuracy and completeness. Then those reports are made public.
[ Page 5292 ]

Section 42 approved.

On section 43.

S. Chandra Herbert: This section is on information-sharing agreements. I’ve been learning about the different jurisdictions and the possibilities that could exist down the road, if we team up with other governments, other jurisdictions, for sharing this sort of information. I wonder if the minister might share some information about what she thinks this section allows the government to do and why it’s been laid out in this form.

Hon. M. Polak: What this does is allow us to put into an agreement provisions that would govern the management of information that would then be shared. It could be different provisions based on different types of information and data that were shared.

For example, if we wish to have an agreement with a registry, one would want to put in place, into that agreement, the kinds of requirements that we currently have on our statutes with respect to freedom of information, protection of privacy — things of that nature. But it would vary depending on the nature of the information being shared and the nature of the cooperation between the parties.

S. Chandra Herbert: Basically, is this similar to what might exist with health data or other forms of data that the government might collect?

Hon. M. Polak: I don’t know if it would be similar to what takes place in terms of health. I apologize for that. But what I can say is that this simply is to ensure that if we are going to share information, we have obligations with respect to information that we possess. Therefore, we would have to ensure that any agreement enabled us to ensure that those obligations were still met, even within the bounds of that agreement.

A. Weaver: I’m wondering. I don’t quite understand the rationale or the purpose of specifying “data-matching or other agreement” in this section.

[1555]

Could the minister expand upon that, what it means by data matching? I’m not quite sure.

Hon. M. Polak: Data matching — commonly used in verification processes. For example, if another jurisdiction had verified an offset, we would want to be able to compare the data and, as the term suggests, match that data.

A. Weaver: The minister will understand my confusion, because data matching, when such words are issued in a scientific realm, would make one rather suspicious — what you mean by data matching. It sounds like data fudging or data creation. So I just thank you for the clarification there.

I’m wondering, finally, on this section — I do have a quick follow-up in between sections, if I might — if the minister can think of an example or a specific situation in which it would be appropriate to share data in the registry with a foreign jurisdiction but not someone in the B.C. public. My worry here and my concern and my question is: to what extent is our freedom-of-information legislation following through with data that is shared to foreign jurisdictions and back?

Hon. M. Polak: A good example would be that one could contemplate something like that perhaps under WCI. It could be a future national trading system or an international trading system. Again, the agreement that one would enter into…. This isn’t a permission to share data. It’s the opposite. It’s a restriction saying…. I shouldn’t say that it is a restriction. It enables the placement of a restriction in the form of an agreement on how that data or that information could then be handled by the other jurisdiction.

I think that probably covers it. We’ll see if that’s sufficient for the member.

Section 43 approved.

A. Weaver: I’m hoping to take this opportunity now, before entering section 44, to introduce, on notice, a motion. We’ll see if we get to it today — perhaps on Monday. Give the government and opposition and my colleague here, the independent, time to reflect upon it.

This proposed amendment will be with respect to the title of the legislation and changing the word “control” to “increase” to better reflect the content within this particular legislation. Through the Clerk to you, I put this amendment on notice.

Interjection.

A. Weaver: I’m just putting it on notice now so that people have time to reflect….

The Chair: Thank you, Member.

On section 44.

S. Chandra Herbert: This section relates to agreements. “With the prior approval of the Lieutenant Governor in Council, the minister may enter into agreements” with another province, territory, foreign jurisdiction “or with an agent of any of them, respecting….” The subsection that I’m curious about is “inspection and enforcement.”

It sounds very broad that the government of B.C. could, through an order-in-council, decide that inspection and
[ Page 5293 ]
enforcement, an agreement on that, could be made with a foreign jurisdiction. What does that mean? Is it that we could potentially, under this section, say: “Let’s allow the Dallas police to inspect, enforce the British Columbia law”? Or we’ll have another country come and inspect and enforce our laws. It just sounds very broad. I’m curious. Am I reading it too broadly, or is it that open-ended?

[1600]

Hon. M. Polak: Not that I would want to cast aspersions on the climate action of the Dallas police department. I’m sure they’re very green.

Nevertheless, one must remember that sub (a) specifies that it must be “for the purposes of this Act.” For example, if we did enter into some kind of trading relationship or something through WCI, just as we would want to be able to verify and inspect on occasion issues of concern around reporting or all those kinds of matters we’ve been discussing rather than allow that to be willy-nilly, we would enter into an agreement before any of this took place. You’d actually have to execute an agreement that would govern how all of that is conducted.

S. Chandra Herbert: Yes, that does help me understand this better. Of course, I would hope that before we entered into such agreements with foreign jurisdictions, the Canadian public would have a sense of what we might be entering into, because some jurisdictions’ rules of law are ones that we can really understand and have some faith in — others maybe not so much.

What sort of consultation, what sort of public notice would be given if we entered into an agreement with a foreign entity to potentially come into British Columbia and inspect, enforce our laws? Of course, enforcement of the laws, even for the purpose of this act, could be quite intense, involving millions of dollars potentially. Enforcing the laws could involve entering somebody’s premises, their home, their office, their business without a warrant.

Given that this is setting up the possibility that a foreign jurisdiction could be involved, for the purposes of this act, in inspecting or enforcing the laws in this act, I would think that the people of this province would want some sense of security that an agreement would not be reached without their knowledge.

Hon. M. Polak: This doesn’t allow for another jurisdiction to come and enforce their laws here in Canada or for us to go and enforce our laws on someone else. For the purposes of this act…. Again, let’s remember what it is that we’re discussing here. It’s all about the reporting of offsets and compliance units and the verification of them. If you were going to….

This provision is intended to be protective, is intended to allow us to be able to protect ourselves. It would enable us to enter into an agreement in order to protect against the very things that the member is concerned about. So we could set out the provisions in that agreement that then protect us from that. It would be something that, as a minister…. With respect to the approval of the LGIC, I couldn’t just go out as an individual minister and execute an agreement on my own. It would have to be government approving that in the form of the Lieutenant-Governor-in-Council.

S. Chandra Herbert: I’m not so much concerned that a foreign government would enforce their laws within Canada.

[1605]

I think the concern that people might have would be a foreign government enforcing our own laws within Canada, as opposed to our own police forces, our own conservation service, etc.

Given that different police cultures, different officer cultures, inspector cultures exist in different countries, one would hope that if you were going to have the law enforced, it would be done by somebody from your own country — somebody who represents your own country; I should be more specific — as opposed to from a foreign government.

I guess the question I have is: what protections…? Maybe not what protections, because the minister has said the protection is that in this section the minister and the government through an order-in-council would have to agree to such a thing, would have to agree and put provisions on it. But just to be clear, there’s nowhere in this law that would restrict or stop a foreign government from enforcing our laws if a government decided to sign such an agreement through an order-in-council.

Hon. M. Polak: There doesn’t need to be a prohibition in this act, because it is prohibited in any case. This act doesn’t enable that, just as there are many things in British Columbia that right now are against the law but they’re not in every act, right? They’re in a specific act. Here this does not enable something any different. It doesn’t suddenly allow foreign governments to come and be able to apply their laws, enforce them and send their Dallas police or what have you. This simply allows us to enter into agreements.

Maybe I should say it this way. Imagine a situation governed by provisions that stipulate how one can operate together with this information across these jurisdictions. The agreement, then, would set that out, would create some rules where none currently exist. But where there are rules that currently exist that provide for Canada to enforce its own laws on its land, etc., those still stand, and this wouldn’t remove those. It couldn’t. It wouldn’t have the power to remove those unless specifically authorized in the act.

S. Chandra Herbert: Then, what I’m hearing is that through other laws, the minister is suggesting that a for-
[ Page 5294 ]
eign government, even if agreed to in this by government — yes, you can come and inspect and enforce…. I’m trying to understand how to square the circle here, where another law says no, those foreign governments can’t come into our country and enforce our laws or do an inspection through a search and seizure or something like that.

Why would it be written in such a way to suggest that “for the purposes of this Act, with Canada, another province, a territory or a foreign jurisdiction, or with an agent of any of them,” respecting “inspection and enforcement,” they could enter into an agreement respecting inspection and enforcement? What would be the kind of thing the minister would think of for enforcement that the government could enter into an agreement with a foreign government to enforce?

Hon. M. Polak: Remember, the provision here doesn’t say “enabling” enforcement. It says “respecting” inspection enforcement. So it could be matters that are related to inspection and enforcement.

Let me try to alleviate the member’s concerns in this way. I would love to think that I as a minister or my cabinet had these huge, incredible powers, but we have within our government at the provincial level a certain range of areas of jurisdiction. I mean, we could all unanimously agree in this House that we want to change a law that is federal, and we could go through all the motions and pass legislation, and it would have no effect.

The same is true of an agreement executed through an order-in-council. The cabinet doesn’t get to change laws, make decisions that are otherwise illegal, prohibited or unconstitutional.

[1610]

Because there are already existing prohibitions, we don’t get to make an agreement that would then trump those existing laws. Nevertheless, the important terminology here, as you enter into sub (a) before you get to (ii), is to enter into that agreement respecting these things — and only these things, by the way. We haven’t specified anything else. It doesn’t mean an agreement that would then enable those foreign jurisdictions to inspect and enforce.

S. Chandra Herbert: Yes, that does help me understand this better. So rather than suggesting that they may enter into agreements which would allow them to inspect and enforce, what I’m hearing the minister say is that it’s entering into agreements which would allow them to look at how the British Columbia conservation service, for example, might have inspected or might have enforced the law.

Interjection.

S. Chandra Herbert: Thank you. That’s a simpler way for me to understand it: that they can look at the process but not actually do that themselves.

A. Weaver: I have a couple of questions on this section as well. I’ll start with reference to subsection (a)(iii). I’m wondering if agreements under this subsection could potentially include allowing B.C. companies to claim offsets in jurisdictions outside of British Columbia.

Hon. M. Polak: No, it could not.

A. Weaver: Sorry, I didn’t hear the answer.

The Chair: No, it could not.

A. Weaver: Thank you. I should have put my earpiece in, hon. Chair.

Where, specifically, in this act does it explicitly preclude an agreement being signed that could allow a B.C. company to claim an offset in a jurisdiction outside of B.C.?

Hon. M. Polak: The principle is that we can’t do indirectly through an agreement what we can’t do directly through the act. Of course, as the member, I’m sure, recalls, as we’ve gone through this act, the provisions outline how offsets are verified. We’ve talked about the standards that are used, etc. So I couldn’t subvert all the rest of that lovely work in the statute simply by entering into agreement that says I’m not going to do all that stuff that we just passed in the statute. So you can’t do indirectly what you’re not allowed to do directly.

A. Weaver: A final question. I think my colleague was wording what I’m trying to ask here in a slightly different way. I’m wondering if subsection (a)(ii) grants foreign jurisdictions or agents the power of inspection and enforcement within B.C., to have their own inspectors actually on our territory here in British Columbia acting on their behalf.

Hon. M. Polak: No, it would not.

Section 44 approved.

On section 45.

V. Huntington: The definition in the act for operator “…means a person considered under the regulations to be the operator of the industrial operation.” But for purposes of section 45, I’d like to understand more fully what the term “operator” means to the province. Is it the board? Is it the owner of the company? Is it the general manager? Is it the operations manager? Is it the CEO?

I wonder who we are calling here “jointly and separately responsible for meeting that industrial operation’s obligations….” Could the minister be somewhat more specific?

Hon. M. Polak: The regulations exist currently under the existing act. We’d intend to port those over so the
[ Page 5295 ]
definition refers to those regulations for a more fulsome description.

[1615]

V. Huntington: I wonder if the minister could tell me, for my own information, then, what those regulations refer to as the operator. Who is the operator?

Hon. M. Polak: Here’s how that reads in the current regulation. We would intend to move this over into the new one.

“(a) in the case of a single operator of a reporting operation, (i) if the operator of the reporting operation is an individual, the operator, (ii) if the operator of the reporting operation is a corporation, (A) a senior officer of the corporation, or (B) the individual with primary responsibility for the operations and management of the reporting operation, or (iii) if the operator of the reporting operation is not an individual or a corporation, the individual with primary responsibility for the operations and management of the reporting operation, and

“(b) in the case of multiple operators, (i) an individual who has been authorized in writing by all the operators to act as the operation representative, or (ii) if subparagraph (i)” — the one I just read — “does not apply, an individual who has been authorized in writing to act as the operation representative by the operator who manages the reporting operation.”

With respect to the member’s question about specific individuals, the determination wouldn’t be made based on their title. The company can call them whatever they like. It’s based on their activities, their role.

And I would ask, Mr. Chair…. I’ll let the member ask a supplemental question. I was just looking for a time to move a short recess.

V. Huntington: It’s quite brief.

The operator is, specifically, jointly and separately responsible for meeting the industrial operations obligations. Does that responsibility include liability?

Hon. M. Polak: Yes, it does.

And if there aren’t any further questions right now burning in their minds, I wonder if we might move a short recess.

Section 45 approved.

The Chair: Recess for five minutes.

The committee recessed at 4:18 p.m. to 4:27 p.m.

[M. Dalton in the chair.]

The Chair: Shall section 46 pass?

Some Hon. Members: Aye.

The Chair: The member for Vancouver–West End.

On section 46.

S. Chandra Herbert: Thank you, Mr. Chair. I appreciate all the ayes. People were keen to get this passed, but I know they’ll give me some time to ask a few more questions.

I think it’s important to ask why the government has decided to give itself the power under “General regulation-making powers,” in 46(3)(c), to “defining words or expressions used but not defined in this Act.” I ask that question because, of course, under that power, greenhouse gases, emissions…. Well, I guess they’re in the definitions, but other words that are not in the definitions could be changed to mean something completely different from what they mean today.

I would like to know why the government feels it needs to give itself the power to define words or expressions in the act at this point, which could allow them to change words from one meaning to another to another to another down the road, depending on the whim of government.

Hon. M. Polak: As I’m sure the member will recall from our lengthy discussion of the new Water Sustainability Act…. That had been in place for well over 100 years. All you have to do is take a look at that act to see that over time it was necessary to alter definitions as words changed use, as different legal precedent was set. It’s not uncommon at all; in fact, I think it’s pretty standard in most legislation.

[1630]

I want to say at the outset, though, of discussing this section and some of the sections to come that there’s an important thing to understand that may help, I hope, to shorten our discussion on this section. That is that you will no doubt have noticed that very often, when inquiring about regulations, my response is that, in fact, those regulations already exist and we intend to bring them over into the new act. While for us as reasonable human beings, we look at the binder that contains the existing act, we see the regulations. There they are. They exist. In terms of this statute, once those bills are repealed, the regulations no longer exist.

So even though staff have copies and will dutifully take those and draft them as regulations for this bill and very many of them won’t change one word; nevertheless, for the purposes of this bill, they are referred to as making regulations. They’re making regulations even though those regulations have existed for many years.

Important to note that a large number — I would venture to say probably the majority — of regulations mentioned here and that we are unable to make are regulations that currently exist under the other acts. We need to enable our ability to make those regulations once the other acts are repealed.

S. Chandra Herbert: I appreciate that. Of course, the minister will have to forgive the official opposition for
[ Page 5296 ]
sometimes being suspicious of government’s ability to change what words or expressions mean. It’s a power that….

Interjections.

S. Chandra Herbert: The independents are agreeing that that is a concern when one is given the power to change what a word means, given that governments have done that through, mostly, in this place, the people in the basement but in other worlds through professional marketing and through professional opinion polling, and so on. Sometimes “cleanest in the world” means different things to different people, including with this act.

I wonder if there are new regulations to be brought in. Certainly, as the lights flicker here, there are new regulations which will be required, as there are new industries going to be considered. There are new pieces of legislation here which describe new regulations that will have to be brought in.

What is the process going to be to ensure that those who have an interest in the regulations — people who are concerned about climate change, people who are concerned about the profitability of their industries — get a chance to make suggestions?

[D. Horne in the chair.]

I ask that because recently I came across a freedom-of-information request which was leading to the government’s order-in-council decision to eliminate environmental assessments for natural gas facilities. That was a decision that they’d made. At the time they said there had been consultation. The freedom-of-information request showed that it really was Encana and the Canadian Association of Petroleum Producers who were consulted.

First Nations were not. Neither was the public or anybody else who had an interest in ensuring that natural gas facilities are operated in a fair, sustainable — where they can be, supposedly…. Hey, there’s a phrase that has been changed in definition as well. What is sustainable these days? Sometimes it’s hard to know.

It is a great concern that people are actually consulted, not just told that they were consulted after the fact. There had been an argument when that case — of getting rid of environmental assessments and bringing back that people had been consulted…. When, from what I can see, it was just CAPP and Encana. What kind of consultation would actually go on for the introduction of new regulations, as thought through in this act or in this section?

Hon. M. Polak: It depends on the nature of the regulation. Some regulations will be relatively minor. Some will have great import. But as is the case in all legislation, I know that staff work with experts in the field. I know that they look to other jurisdictions sometimes for examples, and I know that they look to other statutes.

[1635]

In this case, they have a tremendous amount of existing regulations on which to draw. It really depends on the nature of the particular regulation.

S. Chandra Herbert: Can the minister point me to areas of regulations that they would consider doing consultation on?

Hon. M. Polak: The reporting regulation would be one. We would develop an intentions paper. That would go out for a public consultation, public comment — I believe for a 30-day period. Then we would proceed with drafting.

A. Weaver: I am referring here to section (3)(d). I’m wondering if the minister might be able to provide some clarification as to what this regulation is allowing for in terms of “contemplated by this Act.” It seems rather all-encompassing. Perhaps some kind of bookends could be put on this to let me better understand what the minister’s thoughts are on this particular section.

Hon. M. Polak: Again, fairly standard language. This is reflecting the fact that it is this statute which gives the LGIC the authority to develop regulations. If you look at (a), (b) and (c), of course, they’re fairly specific, and then (d) is the catch-all that enables us to draft regulations on any matters that we have neglected to mention there.

However — and this is extremely important and, again, fairly standard language in legislation — those regulations have to be contemplated by the act. One cannot draft a regulation to accomplish something that should have properly been in the statute itself. If it’s not authorized, if it’s not enabled by the statute, then one cannot decide: “Gee, I’d like a regulation about that, and I think I’ll make it.” It has to be contemplated in the act itself.

A. Weaver: It strikes me, then, that the government is the one that determines whether or not it contemplated this in the act, as opposed to the public. What are the means and ways that…? If government decides that some regulation can be implemented through order-in-council and people out in the community, the opposition, independents, others, believe that, in fact, this should have been in the act, is the onus on others to take the government to court to ensure this is the case? Or does government itself make this decision?

I’m very uncertain as to…. It seems like far-reaching powers for government to really contemplate anything being part of the act and then, accordingly, introduce regulations as they see fit.

Hon. M. Polak: As is the case in any other statute, if the regulation power exercised by the Lieutenant-Governor-
[ Page 5297 ]
in-Council is not done so appropriately, then we would be subject to judicial review in the same manner as if we passed a piece of legislation that was determined to be unconstitutional. We only may act based on the powers that are given to us by legislation. We can’t make up our own powers. That gets us back to the rule of law and the way in which our country functions.

A. Weaver: As we move to subsection (4) and we look at some of the things that are being granted essentially to council…. They can delegate a matter to a person. They can confer a discretion on a person and make different regulations to all manner of things.

[1640]

In essence, what the government is doing here is asking the people of British Columbia to give them a blank cheque and to trust that they will actually have the best interests of British Columbians in mind.

My question, then, comes back to this general topic. Why has the government not brought more of their thoughts on what is going to actually be regulated here into legislation?

I’ve already pointed out, earlier today, that the government did decide to bring the 100-year, very specific time frame into legislation. The government brought in specific penalties into the offence language, as I understand they have to. Why, here, are we not bringing more into this section 46, and other sections, specifically detailing what the government’s intentions are?

Essentially, to me, reading this bill, it looks like the government doesn’t really know the direction it’s going to have. Therefore, it’s deferring any possible pieces of regulatory powers to some time when it decides what it’s going to do. I don’t think that that’s in the best interest of British Columbians. Perhaps the minister could expand, again, on why there’s so much left to regulation.

Hon. M. Polak: There are things that are appropriate in regulation and things that are appropriate in statute. Again, important to note, this is by no means a blank cheque. It’s not even a partially blank cheque. We are governed by the statute.

In order for us to make regulations that are legal, that would pass judicial review, those regulations may only be made if they are contemplated by the act. So it’s not a matter of leaving things to regulation because one would prefer to develop them under the darkness of night and not have them debated here in the Legislature. It’s because there are things that are appropriate in the statute, and there are things that are appropriate in the regulation.

The regulating power does not give government carte blanche. The regulating power only exists within the provisions of the act that are stipulated.

A. Weaver: Clearly, I beg to differ, because in my view, the government took that carte blanche when it, through order-in-council, changed the Clean Energy Act to exempt electricity production for LNG plants. That was never in the spirit nor the intention of the original Clean Energy Act. It was the Clean Energy Act, not the “clean energy except LNG” act.

It’s very difficult for me to trust government on this in light of that very specific example which, I think, outlines that, really, “trust us” does not necessarily work when it comes to legislation with respect to climate policy.

With that said, I do have a small question on section (5)(a), and perhaps the minister can correct me if I’m wrong.

My understanding of this type of clause here, which talks about “enacted as or under a law of another jurisdiction, including a foreign jurisdiction,” or blah, blah, blah…. This is included so that policy writing can be expeditious. Rather, it increases the efficiency of policy writing if there exists, in some other jurisdiction, legislation that, essentially, can be adopted into the province of British Columbia. Is my understanding of this correct?

Hon. M. Polak: Yes. For example, when we were in the discussion about utilizing the ISO standard, it would be this regulation where we would be enabled to point to that, and that takes us back to why the ISO standard is not mentioned in the statute. This regulation would allow us to refer to standards like that.

Section 46 approved.

On section 47.

A. Weaver: I was wondering if the minister could please elaborate on what is meant by meeting “a prescribed level of activity” and perhaps provide an example why this condition is necessary in this section.

[1645]

Hon. M. Polak: This refers to a schedule that we discussed a few sections ago. It’s an existing schedule. We would intend to port it over to the new statute in support of that, and we would add to that the LNG facilities.

A. Weaver: Further, I’m wondering if the minister might be able to provide some information as to what the distinction is between (a)(i)(A) and (a)(i)(B). Why is there a distinction made between these two here?

Hon. M. Polak: This gets us back to — from that same discussion from earlier — the regulations that exist that create thresholds. You report if you’re above a certain threshold. There’s verification above a certain threshold. This enables you to set those thresholds based on things. For example, in those cases it was around tonnes of emissions. That was the determinant. This is the place in the statute that enables that regulation that currently exists under the existing legislation.
[ Page 5298 ]

A. Weaver: Again, for Hansard, in section 47(a)(iii)(A) and (B), there is a very subtle difference between the two. Can the minister please let me know what is meant by “prescribed categories of sources”?

Hon. M. Polak: This is the section which enables us to make regulations around…. The member will remember the discussion around importers of electricity. Hence the reason here it doesn’t just talk about their greenhouse gas emissions but their “attributable greenhouse gas emissions.” They weren’t their own, but they are attributed to them because they are importing it.

A. Weaver: With respect to subsection 47(b), is my interpretation correct that this is, in essence, giving government the power to change, through regulation, the 0.16 tonnes of carbon dioxide equivalent per tonne of LNG equivalent emissions intensity limit? Is that interpretation correct?

Hon. M. Polak: This wouldn’t allow us to change the 0.16, because that’s in the act, in terms of that number. This would allow us to add more — for example, if a new industry needed to be added to the schedule. Then, therefore, because it’s a new industry, it needed a new formula.

[1650]

This enables us to amend and make that addition.

S. Chandra Herbert: In this section, under (e) it talks about “establishing the greenhouse gas emissions that, for the purposes of this Act, are attributable to an industrial operation, a reporting operation or a regulated operation, which emissions may include, but are not limited to, (i) greenhouse gas emissions whether they occur inside or outside British Columbia.”

If the minister might help me understand what the ministry is going for here — when we would be looking to include emissions which happened outside of British Columbia for an operation that is both inside B.C. and outside of B.C. Maybe it’s an industry that’s straddling the border, or maybe it’s something else entirely. I just would like to know the purpose of being able to have a regulation that would include emissions for an industry inside B.C. and outside B.C. together in one.

Hon. M. Polak: Subsection (e)(i) is, again, about the importation of electricity, and (e)(ii) is with respect to grid power and being able to create regulations there.

S. Chandra Herbert: Can the minister provide a hypothetical of what (e)(i), what kind of operation…? Where would this be required?

Hon. M. Polak: The best example would be Powerex. They don’t generate electricity, so they don’t have emissions directly associated to them. However, the emissions from the electricity that they report are attributable to Powerex, and Powerex must report on them on an annual basis.

S. Chandra Herbert: I see. If I understand this correctly, the company doesn’t produce emissions itself, but because of its power lines and other things which lead from other companies that they buy power from, which could potentially pollute, they still have to attribute them. Whether they’re in B.C., Alberta, somewhere else, it’s attributable to them.

Now, attributable, though, I thought meant that they would then have to count that towards their total. If it’s a power plant which runs power through the line to an operation to liquefy gas, that wouldn’t be attributable to the gas company — would it? — under B.C.’s rules if the emissions were outside of B.C. I’m just trying to understand how that’s attributable to that company, if the emissions are outside of B.C., under B.C.’s rules.

Hon. M. Polak: The member will find this discussion familiar. It’s the difference between reporting and compliance.

[1655]

In the case of the power importer, Powerex reports and has those emissions attributable to them. In the case of grid power used by an LNG facility, Hydro reports those emissions, but they are attributable, for purposes of compliance, to the LNG facility.

S. Chandra Herbert: Just to be very clear, this would not allow, though, a company to potentially — I don’t know — have a dummy company set up to attribute emissions to that company when really they should be attributable to the company that is an integration, I guess, with that company. They couldn’t possibly do their operation without the power that they purchase from some other company.

I’m just trying to understand the attributable — what that means, in a sense, to that company itself versus being in compliance.

Hon. M. Polak: The concern about companies getting around the requirements is why we are enabling government to make such regulations. We are, through the statute, providing the authority for government to make those emissions attributable to the facility regardless of a situation like that.

S. Chandra Herbert: Just so I understand it clearly, the idea being…. I can understand why this is being brought in. If a company, for example, advised a whole bunch of others that if they set up natural gas power plants nearby, just happened to, and sold the power exclusively to that company, that could be attributable to the company that was the sole purchaser, or would that be attributable to those companies themselves that were selling the power?
[ Page 5299 ]

Hon. M. Polak: For the purpose of LNG compliance, all electricity generated on or off site would be attributable to the facility.

S. Chandra Herbert: I guess this regulation provides the power for the government to assess: 50 percent of the power comes from this natural gas plant, but that natural gas power plant sells 50 percent to somebody else, so they’re not going to count all the emissions but just the emissions that are directly attributable to powering that LNG facility.

Hon. M. Polak: Yeah, it would be the emissions attributable to the electricity that they have purchased.

S. Chandra Herbert: Another section in this regulation, in relation to industrial reporting and regulated operations, speaks about giving the government the power “respecting the methodology by which attributable greenhouse gas emissions are to be determined on a carbon dioxide equivalent basis.”

One could read that that would allow you to game the numbers, or one could read that to allow the government to change things to ensure that, as we get more precise science, the numbers actually match up with what we understand today. I’m guessing it’s the latter — the minister will say the latter — but if the minister could just help explain what that regulation is for.

Hon. M. Polak: Let’s remember we’re still…. I’m sure the member just misspoke, but we’re not here talking about…. What we’re reading are aspects of the statute that enable regulation-making powers. In fact, the concern around gaming the system is why government would place in statute the ability to make regulations that could then govern how they attribute those and the methodology that’s used. The nature of regulation-making powers is that you are giving government permission to enact the provisions of the statute.

[1700]

Here we want to accomplish the reporting and we, by statute, give ourselves permission to make those regulations and thereby govern how they do that.

S. Chandra Herbert: Yes, I probably was not being clear. What I meant was, of course, what the minister suggested — giving the government the power to say: “Your methodology must work to figure out what is attributable in terms of carbon-dioxide-equivalent basis.”

Interesting. I wanted to know, under (g), “respecting industrial operations, whether or not reporting or regulated, including, without limitation,” what is (g) hoping to accomplish?

Hon. M. Polak: So (g) would be the regulation-making power with respect to enforcing the reporting regime and requirements that we have previously discussed.

A. Weaver: Under subsection 47(b)(i) it says: “amending the schedule (i) to designate as regulated operations a class of reporting operations.” I’m wondering if the minister is anticipating designating any other types of emitters as regulated operations under this subsection. If so, what type of operations are being considered at this time for potential future inclusion?

Hon. M. Polak: There are none at this time.

Section 47 approved.

On section 48.

S. Chandra Herbert: From what I read of this section, “Regulations in relation to compliance units,” it’s quite a lengthy section. It would allow cabinet to make a wide range of regulations pertaining to offsets, so essentially creating the offset regime. I know, with the legislation, much of this is still to be discussed and created — really, every aspect relating to offsets.

Is the minister able to discuss how those regulations will be created? Or do exist now? Are they being ported over? What’s the plan?

Hon. M. Polak: There are existing regulations, but as the member will recall from the technical briefing around the bill, one of the things that we intend to do — and it’s reflected in the statute areas that we discussed earlier — is to increase the level of oversight over offsets. This enables us to put into force those powers through regulation.

Again, though, it’s not wide-ranging. It is in terms of subject area, but we are bound by what we have laid out in the statute. The framework itself is outlined in the statute and is created in the statute, in the bill. So there’s existing regulation. We will add to this a significant amount that will enable that more stringent oversight.

We would intend, with respect to this particular regulation, to follow the same process we discussed earlier — putting out an intentions paper, allowing for public comment and then proceeding to drafting.

S. Chandra Herbert: There is, of course, much work in the Ministry of Environment — not just on this bill but in many other files.

[1705]

Given that LNG, as we’ve been told — likely when discussing climate change itself and the need to meet our 2020 targets…. We may have one plant, maybe in 2019. We don’t know. We may have none. I’m curious what the timing is, as the offsets themselves, to my knowledge, won’t be required until after the first year of operation. What is the timeline, given that there are many other priorities, as well, within the ministry?
[ Page 5300 ]

Hon. M. Polak: We expect to have this effective this spring. We have to, of course, have a regime in place in order for us to accomplish a carbon-neutral government. We also want to have offsets in place and ready ahead of operations coming on line.

S. Chandra Herbert: I know there’s been some concern with folks in the offset world, but elsewhere as well, whether or not there could be enough offsets within B.C. to fill the large numbers of offsets that could be required if people decide to purchase what could be lower-priced offsets compared to a $25 technology fund. Under these regulations, of course, it sets up how that regime will be managed. Does the minister have confidence that there will be enough offsets to meet the demand of five LNG terminals?

Hon. M. Polak: I understand that there has been significant analysis conducted, and we have no concerns with respect to the amount of offsets that will be needed and the ability of British Columbia to be able to supply those.

S. Chandra Herbert: Just as earlier the minister had committed to providing me with how the ministry had come to their best estimates of upstream emissions for five LNG facilities, is it possible to share what that analysis is? I don’t know if it’s a report or a memo or a note for the minister within staff. It would just be useful to know because I know there has been that concern raised.

Hon. M. Polak: We think some of it may already be public, that the Pacific Carbon Trust may have already publicized some of it or provided some of it publicly, but we’ll take a look at what we can provide you.

A. Weaver: I’m going to refer to subsection (1)(e)(iv). I’m wondering if the minister could please explain what is meant by the words: “establishing the processes (iv) by which offset units are issued.”

The Chair: Could the member clarify the section once again?

A. Weaver: I’m sorry. It’s subsection (1)(e)(iv). So (e) says, “establishing the processes,” and (iv) says: “by which offset units are issued.” I’m seeking clarity as to what that actually means.

[1710]

Hon. M. Polak: This harkens back to the sections that describe the director issuing certificates per tonnes or a certificate for a tonne. This would be the regulation that gives life to the manner in which the director would do that.

A. Weaver: In the next section, (1)(f)(i), the term “security” is mentioned. It’s mentioned several times later, but I’m wondering if the minister could please clarify what security is actually referring to and what the overall meaning is in the context of this section — perhaps also by offering a few examples of the form in which the security is anticipated to be given.

Hon. M. Polak: This goes back to the section discussing reversal of offsets and the use of contingency accounts, holdbacks. This would be the section of the statute here that allows us to make regulations in order to accomplish that.

A. Weaver: On (f)(ii)(B) it talks about “the payment of interest on security.” I’m wondering if the minister might be able to provide some detail as to why one would need to pay interest on security and what sort of interest we’re talking about.

Hon. M. Polak: Notwithstanding the fact that we discussed the contingency accounts, the holdbacks, it may be that in some cases security takes a financial form, in which case one may need to construct regulations that would deal with interest payments or interest owing.

A. Weaver: As I’ve outlined earlier, far-reaching powers are being granted to government through a number of regulations. I’m profoundly troubled by the implications in that same (f), (iii) and (iv), with respect to the Land Title Act. Again, I’m wondering if the minister might be able to allude to what’s being envisioned here as to why we’re needing to evoke the Land Title Act and statutory rights under various sections there.

I recognize that the minister spoke earlier about farmland conversions to forestry. Afforestation is not what they’re envisioning here. But could one, for example, envision, say, massive areas of Crown land being sold to foreign jurisdictions as an offset? Simply taking tens of thousands of acres of trees and saying: “This is an offset. Now you own it, or pay us to put it away?”

I really would like some more guidance as to what the minister is thinking with the inclusion of these two sections.

Hon. M. Polak: This provides the regulation-making power to support section 10 of the bill. But it doesn’t do anything to establish the ability to plant trees on ALR land or what have you. If you refer back to section 10, it’s fairly consistent — what the statute says and then what the regulation-empowering language here in these two provisions says. The wording is very similar.

S. Chandra Herbert: I just wanted to ask…. It talks about establishing the processes, under sub (e), “by which the director accepts an emission offset project, (iii) for applying
[ Page 5301 ]
for the issue of offset units, and (iv) by which offset units are issued.”

[1715]

How much of that will be public? When a director accepts an emission offset project, is that…? They accept it, and then a company has contracted with an outside party to say: “Yes, I want that offset. It looks good to me.” They show it to the director. The director considers the offset project. It goes through the test. They agree this looks good.

That’s how it is? Then that becomes public? Or is it just the certificate, a year after the offset project has been accepted, to show that, yes, this is a proven project? What does that look like?

Hon. M. Polak: If the member refers back to section 9 of the act, all of that is pretty much laid out, what the director must publish.

Again, I’m going to say this just because it often gets repeated on the other side, and I do think it’s worth making the point: we do not have sweeping powers. We only have powers to make regulations that are outlined in the act. Here’s another example of where the act says: “Here’s what it must look like.” This enables us. It gives us the authority to then make a regulation giving life to that. It doesn’t allow us to change fundamentally what has been placed in the act.

This refers back to section 9 and allows us the authority to make regulations in order to ensure that section 9 is adhered to.

S. Chandra Herbert: I would say first that I think it is fairly sweeping to be able to change or define what a word or an expression is. But our definitions of what “sweeping powers” might be may differ somewhat.

I wonder. I guess it would be under 48(3), if the minister might be able to explain the purpose of this: “If the minister has entered into an agreement under section 44” with Canada, another province or a foreign jurisdiction. What are those regulations? Why is that required through regulation, as opposed to just very clearly in legislation?

Hon. M. Polak: The regulation isn’t what allows for the equivalence of units and those kinds of things. It’s the statute that does. This references that and then allows us, by referencing it, to make regulations to outline how that must occur.

S. Chandra Herbert: Under sub (4) it discusses the Lieutenant-Governor-in-Council making regulations respecting the retirement of compliance units. What sort of regulations are we thinking about here? What would you do to determine that a compliance unit could be retired?

Hon. M. Polak: Again, we are seeing the same pattern repeated here. The statute already — and we’ve discussed it — outlines provisions with respect to the retirement of units. This enables us to create in regulation that step-by-step process. It’s already in the statute. The regulation then describes the operation of that.

S. Chandra Herbert: I’m not asking for the explanation that, yes, it is indeed under the statute, which then points to this regulation. I understand that.

[1720]

I’m just asking for some potential examples of what could be considered for a retirement of compliance units — what, out in the world, a common layperson could understand of how they could retire a compliance unit.

Hon. M. Polak: At the beginning you have a unit that is created in their holding account. When they utilize it for compliance, it’s then in their compliance account. After the year for that reporting period, then that offset is retired — never to be used again, because it’s already been used. That unit of carbon has already been accounted for, and you don’t get to use it again.

S. Chandra Herbert: Moving to “(5) The Lieutenant Governor in Council may make regulations,” this relates to the technology fund. It might be appropriate at this time to ask for the response around freedom of information relating to the technology fund.

Hon. M. Polak: I still don’t have a final answer. I apologize. I guess the question is more complicated than I envisioned.

S. Chandra Herbert: With respect to the minister and her staff, I still am surprised that a question like this would not be answered in time for a bill to be presented in the House. A technology fund was touted to media as being a very important part…. The minister in her own speech, as well, and other members of the government have spoken about how important the technology fund could be to achieve emissions reductions.

To not know, to not have an answer yet, on whether or not it will be subject to freedom of information is troubling. I think the public should have that chance to understand, at least within the understanding of the Freedom of Information and Protection of Privacy Act, what’s going on.

Is it payoffs to friends? Or is it a fabulous organization that makes sure that the money is going where it should? It could be one, it could be the other, it could have some problems, and it could be fabulous in other ways. The industries that pay into the technology fund may want to know: is it being administered fairly, are there workplace problems, and are their dollars being used wisely?

I’m not sure if the minister can tell me what’s complicated about it now — could help me understand. I know she had a response which didn’t quite pass muster and
[ Page 5302 ]
got sent back, and I thank the minister for sharing that with us. I would like to understand why it’s so difficult to get an answer to this question, given that this is the minister’s bill. I would think that she would be able to say that, yes, this is covered by the Freedom of Information and Protection of Privacy Act or, no, it’s not, and these are the reasons why.

Hon. M. Polak: The reason that it is a complicated question is because the technology fund isn’t right now. It doesn’t exist yet. So we’re essentially asking a hypothetical, which, of course, sends all the legal minds scurrying with…. I don’t mean that to sound insulting, but it means there is a lot of: “Well, if this and if that….”

My commitment to the member is to track that down, but it is no small feat to try and determine something like that. In many existing cases there have been disputes about whether an organization is or isn’t subject to freedom of information. Of course, I’m sure the member would understand that an operation that doesn’t yet exist would be even more challenging to define.

Nevertheless, that’s also not expertise present within our ministry, of course. We’re looking for that information elsewhere. But I will endeavour to get that for the member in time for passage of the bill.

[1725]

S. Chandra Herbert: I appreciate the minister being forthright that that expertise is not within the ministry. I wouldn’t expect that to be. Of course, this bill would go to legislative drafters. And while the concept of a technology fund would be something that this government and others may have suggested…. Maybe they took it from Alberta, maybe they took it from other examples across the globe, but I would think that even if it’s a hypothetical organization, in the sense that it doesn’t exist yet, those organizations — hypothetically, and we know through practice — don’t get created on their own.

They get created through intention, through decision, through action. I think it’s important to understand if the minister thinks it should be under the Freedom of Information Act or not. The minister, in the end, is the one responsible, to a large extent, along with her colleagues, for the creation of the technology fund and how it’s administered.

We wouldn’t say we don’t know how it will exist and just let it create on its own, of course, because the minister and her staff are going to be very much involved in the creation of it through consultations, through decision, but through broad guidelines.

The minister is able to say, without consultation and without broad discussion — potentially, at least not an open consultation that I’ve been involved in — that it will be $25 a tonne. We know how much it’ll cost, but we don’t know if it would be under the freedom-of-information and protection-of-personal-privacy act.

I’m curious who the minister is consulting on this at this point. Is it a matter of cabinet having to make this decision? Is it a matter of staff deciding, based on other technology funds elsewhere? Who is doing it? If the minister doesn’t know if it’s going to happen, who is making the decision?

Hon. M. Polak: I’m seeking clarification. Sorry, I had to check what the acronym was. You’d think I’d know them all by now.

We’re seeking confirmation and clarification from the office of the chief information officer, Justice, Attorney General and the Ministry for Technology, Innovation and Citizens’ Services.

S. Chandra Herbert: Thank you to the minister for being able to get through those acronyms relatively quickly. Yes, there’s always one that we don’t know, or a few. For example, I’ve been adding “personal protection of privacy” act when it’s not personal protection; it’s the Protection of Privacy Act. Of course, we want personal protection of privacy as well, but that is, indeed, not the acronym.

I appreciate the minister telling me who is being consulted on this. Of course, one hopes that when legislation is brought forward that all of the i’s are dotted and the t’s crossed, but sometimes it’s the i’s that are crossed and the t’s that are dotted, and that sometimes does not lead to good results. I appreciate that the minister is working hard to get it right, even if it wasn’t ready at the beginning of the act.

I take the minister’s commitment that it will be ready by the time we actually vote on this act, which could be tonight, but my guess is it will not be tonight. It may be a future date.

Interjection.

S. Chandra Herbert: I will not vote on it tonight without that information, Minister. I appreciate the offer, but I wouldn’t be doing my job as an opposition critic to actually get the information we need to judge this act as we need to.

I don’t have more on that technology fund as it stands now. Maybe I’ll throw one more out. Does staff know whether or not the Alberta technology fund is under their version of a freedom-of-information act?

Hon. M. Polak: We’ll have to find out.

Section 48 approved on division.

On section 49.

[1730]

A. Weaver: It strikes me — correct me if I’m wrong — that this section is actually giving Lieutenant-Governor-
[ Page 5303 ]
in-Council the power to define, through regulation, what is or is not a conflict of interest. Please correct me if I’m wrong with that.

Hon. M. Polak: In previous sections we’ve discussed the important role that accredited validators will play. This gives us the power to create regulations and criteria by which we can establish who would be accepted as an accredited validator. It ensures that not just any Tom, Dick or Harry can walk in and say they’re an accredited validator. We can actually set the guidelines in regulation restricting who may operate in that way.

A. Weaver: I must say that when I read language that gives cabinet, essentially, power to define what is or is not a conflict of interest, the word that the member for Cowichan Valley said comes to mind — that word being, of course, “jiggery-pokery.” Thank you to my friend from the Cowichan Valley.

Why would the ministry not pass such powers to an independent body to determine what is or is not conflict of interest?

Hon. M. Polak: Similar to some other provisions we’ve discussed, the effect of this regulation-making power is the opposite of what the member is suggesting. This doesn’t allow cabinet to accredit validators. It doesn’t allow cabinet to take someone who isn’t an accredited validator and make them into one.

What it does do is allow us to point to requirements that must be met in order for us to, under the act, use them as a validator. So out of the broad sea of accredited validators who are out there, a subset of those would meet the requirements that we would put into regulations.

Otherwise, if all of them automatically met all the requirements that one could envision, there’d be no need for this regulation-making power. The reason it’s there is to ensure that there is further oversight and further requirements beyond that of the individual or the bodies’ initial accreditation.

A. Weaver: I appreciate the minister’s response. I recognize in previous examples I’ve accepted the response as being very helpful. In this case, if I read it…. I don’t find that response as applicable in this case.

It says here:

“The Lieutenant Governor in Council may make regulations respecting validation bodies, validation statements, verification bodies and verification statements, including, without limitation, regulations (a) establishing requirements and standards respecting qualifications, accreditation, conflict of interest and other matters relating to persons who perform validations or verifications under this Act.”

[1735]

It’s very clear that this section (a) is allowing government the power to actually, through order-in-council, determine what is or is not a conflict of interest in its application relating to persons who perform validations. So in essence, this is coming back to: what if the conflict of interest with the validator or someone who is performing validations or verifications actually resides with a member of cabinet? We’re getting into a very, very awkward situation where cabinet is providing the rules and regulations about conflict of interest. Yet that could pertain to somebody where the conflict of interest is with somebody in cabinet.

Is the minister not as concerned or troubled about this as I am?

Hon. M. Polak: Well, I’m certainly concerned about the potential for those without the appropriate accreditation or requirements trying to operate as an accredited validator or operate under this statute.

Let me see if I can put it a little more clearly. If you harken back to, for example, the reporting regulation around a verification body…. This is from the existing reporting regulation. What we do there is we reference standards, and in this case the ISO standards.

The reason this regulation power is here is so that in the case, for example, of establishing requirements and standards, you want to ensure that…. Take, for example, the accreditation part that I used before. Not all accreditations are going to be created equal. Somebody, conceivably, could start the, I don’t know, Las Vegas Midnight Accreditation Issuing. I know I’m using a ridiculous example, though on purpose. Because they hold a certificate doesn’t mean we are going to accept them.

The same would be true for the other areas here. We need to make sure that the standards in place are appropriate so, therefore, are creating a regulation-making power in order to accomplish that. The standard way in which that is accomplished is by referencing other standards. This is where the “not limited to” comes into play. It may be that there could be some aspect here where there are no external standards to point to, and we, therefore, will need to create some.

But in most circumstances, as one can see in the previous reporting regulations, it’s a matter of referring to standards. One might do that in the case of a doctor and their degree, or what have you.

A. Weaver: I’ll just try and see if I can explain where I’m coming from. Let’s suppose the inevitable happens, that the British Columbia Green Party is sitting on that side of the House.

Interjections.

A. Weaver: I’m so pleased to see that the members of government agree with me on that. I was a little concerned that the opposition didn’t support me in that statement there.
[ Page 5304 ]

The Chair: I would say that the discussion of hypothetical matters is an out of order, but I’ll let the member continue.

A. Weaver: I recognize that, hon. Chair, but we’re not speaking in hypotheticals.

Let’s suppose that I now am the minister of things that are very important, and I’m sitting around the cabinet table. My brother, who happens to be a very fine accreditor who has not a certificate of accreditation from the Las Vegas fly-by-night operation that you were referring to but from a very prestigious accrediting organization. I, now in cabinet, through regulation, have the power to determine whether or not my brother is in conflict of interest — at least, of my regulation. We might deem, because we all like my brother and he’s actually also with the B.C. Green Party, that we want him to get this contract.

What is stopping…?

S. Chandra Herbert: Unethical.

A. Weaver: It would be unethical, I agree. But what is stopping us here, given that the cabinet has power to actually determine what is or is not conflict of interest? I can see all sorts — field days — of questions coming from the opposition as to various members in government, about people being in conflict through allowing government to actually create this.

[1740]

Hon. M. Polak: That was not only entertaining, but I think I now understand the nature….

A. Weaver: Visionary.

Hon. M. Polak: It was visionary. I now understand the nature of the member’s question, and I think I can manage to reassure him.

Firstly, in the member’s example respecting a cabinet minister, of course, all members of this House are already governed by the conflict-of-interest…. The Conflict of Interest Commissioner governs our activities. In this case, it’s not that cabinet would define what a conflict of interest is. That’s already defined in law. It’s that this would give cabinet the power to require that conflict-of-interest standards and the appropriate policies are in place.

In the case of an accredited validator or validation body that we were going to use, we could require that they have appropriate conflict-of-interest standards. But cabinet would not get to define what is conflict of interest, because that’s already defined in law.

S. Chandra Herbert: Well, it was an interesting hypothetical example that the member for Oak Bay–Gordon Head laid out, with the Green Party on that side of the table involved in conflict of interest. I’m sure he did not want to suggest that that would be something he would do if he was the minister for everything important. Alas, that was the suggestion.

Anyways, moving on from that — I did enjoy that — I’m glad the minister said that she would not want to use the Las Vegas fly-by-night carbon offsets adjudicator. I’m sure they’re in the phone book or on the Internet — everything truthful on the Internet, for sure.

But what, again, I’m still trying to understand is: it is up to the government to decide which adjudicators they feel are credible or not. Is that correct?

Hon. M. Polak: We would set the standards. In much the same way that a professional body, for example, is setting out standards by which you become a doctor or by which you become a lawyer, I guess, by extension, at a certain point a person is approved for use. But it wouldn’t be that we’re creating a schedule with listed validators. We would instead be setting the requirements. Then, in the selection of a validator, that would guide the selection. You couldn’t use someone who didn’t meet those requirements and standards.

S. Chandra Herbert: So while the minister said that she would not, of course, choose the Las Vegas fly-by-night carbon offset company, there would be nothing to stop a future government — such as the one my colleague referred to — setting standards that maybe might allow the Las Vegas carbon offset fly-by-night scheme to be accredited. If the government is setting the standards that you could be accredited under and if they were set very low, that could conceivably happen. I think that’s the question.

Hon. M. Polak: That’s why it’s important that the statute guides the making of regulations, because of course, the statute doesn’t just outline the role of accredited validators, but then it also goes further and outlines what they’re validating, what they must do, how their reporting takes place and all of that.

Again, the regulations aren’t being constructed in a vacuum. They’re being constructed based on what is allowed in the act. Even a future government is bound by what’s in the statute itself. They can’t simply make up regulations that would be in conflict with the statute.

I would venture to say, based on what we have already discussed in the act, it would be very difficult to construct a valid regulation under the act that would allow for such a thing and at the same time be consistent with the previous sections we’ve discussed.

S. Chandra Herbert: The reason I raise it, of course, is that earlier, when we were talking about the statute, both the member for Oak Bay–Gordon Head and myself — and indeed, everyone on this side of the House — raised concerns with even some of the definitions,
[ Page 5305 ]
that the definitions were not precise enough to ensure that there would be no wriggle room to allow enough space to bring through the Las Vegas fly-by-night operation, so to speak.

[1745]

A. Weaver: No jiggery-pokery.

S. Chandra Herbert: No jiggery-pokery — as, of course, my colleague from Cowichan Valley would raise concern about. I’m not sure if there’s somebody in this House who collects, I don’t know, a quarter every time someone says jiggery-pokery, but it seems to be…. That would be a good charity fundraising thing to do when the member gets flying.

Forgive me if I don’t quite agree that the statutes are strong enough to ensure that no jiggery-pokery occurs. When the statutes refer to the regulation and the regulation leaves it broad enough, jiggery-pokery can occur.

A. Weaver: Okay. There’s 75 cents.

S. Chandra Herbert: There’s 75 cents there for charity. Jiggery-pokery indeed.

I’ll leave that section there. I think we’ve made our point around the concern that that is possible, although potentially not probable, given that I think the public would be largely upset if they were to discover that these offset validators were not credible.

We can move on to the next section.

Section 49 approved on division.

The Chair: Minister, noting the hour.

Hon. M. Polak: Noting the hour, I move the committee rise, report progress and seek leave to sit again.

Motion approved.

The committee rose at 5:46 p.m.

The House resumed; Madame Speaker in the chair.

The Committee of the Whole, having reported progress, was granted leave to sit again.

Hon. M. Polak moved adjournment of the House.

Motion approved.

Madame Speaker: This House, at its rising, stands adjourned until 10 a.m. Monday, November 17. Safe travels, all.

The House adjourned at 5:47 p.m.

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