Orders of the Day

Hon. M. Farnworth: I call Committee of the Whole, Bill 21, Miscellaneous Statutes Amendment Act.

[2:45 p.m.]

Committee of the Whole House

BILL 21 — MISCELLANEOUS STATUTES
AMENDMENT ACT (No. 2), 2021

The House in Committee of the Whole on Bill 21; S. Chandra Herbert in the chair.

The committee met at 2:48 p.m.

Hon. D. Eby: This is, as we noted in the second reading speech, a bill of multiple statutes being amended. So there’ll be staff in and out of the chamber here today. For the initial set of sections, ideally, we can do sections 1 through 3 and 23, the Civil Resolution Tribunal Act sections.

With me are Darin Thompson, legal counsel, policy and legislation division, and Nina Bindra, legal counsel, legal services branch.

I look forward to the members’ questions.

On clause 1.

M. de Jong: Some of this will, as I pointed out in second reading, merely be for the Attorney to confirm. My read and comparison tells me that the newly proposed section 56.6 of the Civil Resolution Tribunal Act — the language — will mirror precisely that language which exists in the Administrative Tribunals Act today. Is that correct?

Hon. D. Eby: The member has a correct understanding.

M. de Jong: And the newly proposed, in clause 1, 56.7 of the Civil Resolution Tribunal Act actually mirrors the existing section 56.7 of the Civil Resolution Tribunal Act — no changes there.

[2:50 p.m.]

Hon. D. Eby: The member is correct, but it’s not exact. The intent was to mirror, as closely as possible, section 58 of the Administrative Tribunals Act.

M. de Jong: I asked my question clumsily and incorrectly. I think if I break this down, the proposed subs 56.7(1)(a) and (b) appear to mirror precisely the language in the existing act. When we get to sub (2), the difference I noted relates to a difference of sub 58(2)(c) of the Administrative Tribunals Act, most particularly the deletion of any reference to privative clauses — that term which, of course, has great import when considering matters of judicial review.

Can the Attorney explain what, if any, substantive significance flows from the deletion of the reference to privative clauses?

Hon. D. Eby: The significance is…. The effort here is to respond to a court decision that imposed a standard of review that was not what was intended. So to create ease of reference for people who head off to a Supreme Court for a judicial review, some of whom may be lay litigants and aren’t familiar with the Administrative Tribunals Act, the idea was to try to import directly into the legislation the Administrative Tribunals Act provisions.

Because this legislation for the civil resolution tribunal already has a privative clause, all that the drafters thought — and what’s put in front of the House — needed to be imported was the applicable test for legislation that has a privative clause. They didn’t need that extra section that says, “If there is a privative clause, then this is the test that applies,” because there is a privative clause in the legislation. Just importing the relevant test in from the ATA, the Administrative Tribunals Act, achieves that goal.

It’s not meant to change the standard by removing that, just to simplify the text.

M. de Jong: I heard two things there. The last part that I heard, which I understood to mean no substantive change to the test…. Maybe that is the relevant part of the answer, that the wording has been adopted to enhance its readability, but it has not been done with a view to, in any way, altering the substantive test for securing judicial review.

Hon. D. Eby: That is correct.

M. de Jong: Still in section 1. The proposed 56.9 seems to me to mirror precisely the language in sub 59(4) of the Administrative Tribunals Act. Is that correct?

[2:55 p.m.]

Hon. D. Eby: The member is correct. At a risk of sounding a bit pedantic — not intended — just for the record, it imports subsections 58(3) and 59(4). But that is a distinction without a real difference, because in the Administrative Tribunals Act, those sections both have to stand independently because it depends on the on the particular tribunal. But for this legislation, they can both be combined into one because it is part of an integrated whole of the Civil Resolution Tribunal Act.

The short answer is that the member is correct. The longer answer is that the drafters had other thoughts that were incorporated in here as well that I wanted to reflect in my answer.

M. de Jong: That’s all helpful. I expect that when we move to section 2, it will pass very quickly, and similarly the transitional provisions in section 23.

I’ll tell the AG why, besides wanting to confirm the na­ture, that became a question for me. Some of this, maybe, we can chalk up to the hyperbole of politicians and some of it to the overenthusiasm of communications officers.

I’m not going to belabour the second reading debate. Suffice to say I had a slightly different take on it than the Attorney. But I will observe this. At one point, one of his colleagues referred specifically to the sections on the Civil Resolution Tribunal Act as representing — the word she used — a major change. I’ll take that with a grain of salt — what politicians in this chamber will say from time to time.

What caught my attention, I suppose, more importantly, was in the communications material released by the government communications branch, which attributed to these amendments…. What they said is that these amendments will improve access to justice for parties involved in judicial review of CRT decisions.

I don’t know. I’m all ears. I’m not critical of the amendments, having just established they don’t change anything. I’m kind of curious to hear how they are, in the words of the member for Langley, a major change, or perhaps more importantly, will in any appreciable way improve access to justice.

Hon. D. Eby: Thank you to the member for the question. First of all, in terms of our disagreement about the second reading speech, the member shouldn’t be so hard on himself. I said I thought his speech was good, so I don’t know why he would disagree with me. But that’s fine.

The general intent here is to try to make the legislation accessible to self-represented litigants, which is an access-to-justice issue. I agree with the member that in terms of the panoply of this government’s access-to-justice initiatives — of which I’m very proud and happy to go into in detail — this is a modest one, compared to the broad piece.

[3:00 p.m.]

This is an important piece. When we reform the law, when we respond to court decisions and so on, part of the lens that’s put on it is: if someone is representing themselves — the member saw this in the Court of Appeal Act, for example — can they understand the law if they read it? How can we make it more understandable and accessible for them?

It’s part of a broader approach to access to justice that includes how our statutes are written and how accessible they are. It was a significant impact on how we intended the civil resolution tribunal to operate, how their decisions would be reviewed by superior courts — the court deci­sion that we’re responding to. So for some people, that was a major impact, and members will have their own perspectives on this significant piece of legislation.

I take the member’s point. This is a response to a court decision and a relatively modest access-to-justice piece, but we like talking about access to justice. That’s not a bad fault to have, I say.

Clause 1 approved.

On clause 2.

M. de Jong: Only to indicate to the committee that I don’t have any questions on clause 2, nor do I have any questions on the transitional provision in clause 23. I don’t know that we have to pass 23 out of order or the Attorney is satisfied that I don’t intend to ask any questions at that point.

Interjection.

Clauses 2 and 3 approved.

On clause 4.

Hon. D. Eby: This is the miscellaneous statutes amendment bill. We do have different staff for each section. I’m going to thank, very much, Darin Thompson and Nina Bindra, for their assistance. I’ll be joined shortly by Kate Phillips, legal counsel, legal access policy division, and Tyler Nyvall, legal counsel, policy and legislation division.

Previous to my rising, I had an off-the-record conversation with the critic, who asked me to provide a bit of context for the following set of sections and what is intended to be achieved with these amendments.

What I propose to do is provide some perspective with respect to a specific treaty, the Maa-nulth treaty. These are provisions that create the ability for B.C. Provincial Court to have jurisdiction to hear prosecution of offences under treaties. The example of the Maa-nulth treaty has a specific section, section 13.33.1, that says, in that treaty, that the Provincial Court has the jurisdiction to hear prosecution of offences under Maa-nulth laws.

[3:05 p.m.]

Implicit in that provision is that no other person or body has that jurisdiction. Therefore, the expectation is Maa-nulth will be turning to Provincial Court for all prosecutions in relation to their laws, which includes proceeding by way of violation tickets, because they’re a kind of prosecution.

There’s a treaty requirement on the First Nation, which is actually not a requirement. It’s a right. It’s a right to have their short form prosecutions processed through B.C. Supreme Court. The problem is that under our provincial law, the Offence Act doesn’t align with that requirement that’s in the treaty. We sign this treaty. We agreed. We come to Provincial Court, and it would be prosecuted through Provincial Court, and then the Offence Act doesn’t line up with that.

It’s not about us being considerate. It’s not about us trying to engage in reconciliation or anything else, although it is part of reconciliation. This is a treaty obligation that we have to the Nations where it’s mandated that we entered into this agreement, and we need to bring our laws into alignment with those treaties.

I’m happy to go into more detail about the kinds of tickets that Tsawwassen, for example, may be providing or so on, but I hope that provides some context for why this is appearing in front of the House, what our intention is here. It’s to bring provincial law in line with treaties that we have signed and entered into.

M. de Jong: That is helpful. I’ll try to ask these questions as they relate to specific sections, but I think on section 4, maybe a slightly broader conversation. I’ll preface it by pointing out to the committee and to the Attorney General both acknowledgment of, understanding of and support for what is being undertaken here.

I think, given the unique nature of what’s being done, it’s worth spending a few moments to ensure that, at least on the record, people understand that there is not something new being created here. It is facilitating agreements that have been signed in the past.

In addition to some alterations to existing definitions — the “enforcement officer,” which includes now, with sub (b), a “ticketed amount,” which includes a reference, and we’ll maybe come to that in a moment — there are two new terms being added: “treaty first nation” and “treaty first nation law.” That captures a specific set of First Nations, at this point. Hopefully, one day it will include a growing number.

I wonder if the Attorney might simply place on the rec­ord. Today these amendments are relevant to treaty First Nations. Who are those treaty First Nations? The Maa-nulth that he referred to, of course include five legally distinct First Nations.

Hon. D. Eby: The member is correct. The Maa-nulth First Nations are five different groups, five different nations. Huu-ay-aht First Nations are included. Ka:’y­u:’k’t’h’ or Che:k:tles7et’h’ First Nations are part of this. The Toquaht Nation is part of this, the Uchucklesaht First Nation is part of this, and the Yuułuʔiłʔatḥ, formerly Ucluelet First Nation, is part of this as well. It also includes the Tsawwassen First Nation and Tla’amin Nation.

It does not, though…. Members’ minds might turn to Nisg̱a’a as a treaty nation, obviously. The Nisg̱a’a ob­served the legislative development process but chose not to participate or have the amendments apply to their nation at this time, so it does not include them.

M. de Jong: The Attorney correctly anticipated the question I was going to ask about the Nisg̱a’a. I couldn’t remember…. For other purposes, the Nisg̱a’a is included as a treaty First Nation.

[3:10 p.m.]

What mechanism distinguishes them in this case from being captured by these provisions? Are they captured by these provisions but chose to not participate, or are they excluded from the definition, for these purposes, of treaty First Nation?

Hon. D. Eby: They are a treaty First Nation. They had the option to participate or not in terms of having it supplied to them, and they elected not to have these amendments applied to their nation. So it was their decision to make. At any time they could, if they wished to, enter into participation in this.

M. de Jong: To be clear…. I might not use the right term here. The opt in — the nations are drawing down on their power from the treaty, correctly and appropriately — would be to choose to have violation tickets issued by the Nisg̱a’a Nation adjudicated in the Provincial Court, and that’s the part of this that the Nisg̱a’a have chosen not to opt into. If they did in the future, the mechanism would exist for them to do so?

Hon. D. Eby: The member is correct.

M. de Jong: I think there were two reasons that I just wanted to take a moment to establish on the record. One, I suppose, relates to the geographic aspects. This will ultimately have implications for people who may not be members of these First Nations but who may be issued violation tickets, and it will be relevant to how they either settle or those tickets are adjudicated.

I will say that there’s another, perhaps self-serving, reason for going through that exercise. Merely to point it out is sometimes frustrating to hear, in the course of political discourse, that nothing occurred in the realm of relations with First Nations for a lengthy period of time when I occupied a seat on the other side of the House. In fact, the Attorney has confirmed that comprehensive final treaty agreements were negotiated with seven First Nations. We are happily adjusting laws that breathe further life and allow for the operationalization of those treaties.

I suppose that in a truly self-serving manner, the fact that I think my name is on all or most of those treaties as the minister responsible…. I hope the committee will not think it too self-serving to point out that a lot of things did happen, a lot of positive steps. The evolution of that probably also explains why the Attorney shouldn’t anticipate great opposition to the provisions that are here before the House, because they flow from comprehensive settlement agreements that were negotiated by the previous government.

To get into just a little more detail, I’m looking at the definition of “ticketed amount,” and (a), I believe, is just the existing language. Then (b) is the reference to treaty First Nation law. Is there any…? If we were to try to ask ourselves: “Okay, what laws would be governed by a violation ticket…?” Do these provisions apply to anything by which action is commenced by violation ticket? Or is there a separate mechanism, either under the jurisdiction of the First Nation or elsewhere, that determines which laws and which violation tickets are governed by these proceedings? Or is it any treaty First Nation law that generates a violation ticket? That may be the answer.

[3:15 p.m.]

Hon. D. Eby: Let me just take a moment to thank the member for his public service, both in the office that I hold and, for many years, as Minister of Finance. Without question, he made his mark on the B.C. government and on the province.

I’ll say this. There were many things I disagreed with, but there were some that were supported across the aisle. I believe that these treaties were part of that, so I wanted to recognize that on the record.

With respect to his question, he’s right. It is any provision of these treaties — a law that arises from it — that could result in a violation ticket. Those are the tickets that could be adjudicated in Provincial Court.

M. de Jong: Thanks to the Attorney for his kind re­marks. I’m still in sub (b). I just didn’t understand the last phrase: “…if 2 fines are established for the contravention, the fine payable at the time of payment.” I just didn’t know what that meant or what an example would be where you would have two fines established for the contravention and the fine payable at the time of payment. What’s an example of that?

Hon. D. Eby: This is a provision that exists already in the Offence Act, and it is slightly modified in these proposed amendments to apply to an alleged contravention of a treaty First Nation law. The two fines are typically where if you pay the ticket within a prescribed period, it’s a lower amount, but if you don’t pay within that window, then the amount goes up for your payment. So then you result in a fine that has two components to it, based on when you pay.

M. de Jong: Okay, that’s good. That’s an answer that makes sense to me.

I’m down at sub 4(b), sub-sub (b), which begins: “a law made by a treaty first nation in accordance with a provincial or federal enactment that delegates law-making authority to the treaty first nation.” My question on this is as follows.

We’ve established there’s a pretty exclusive club right now that belongs to, that is captured by, the definition “treaty first nation”: the seven we’ve mentioned plus the Nisg̱a’a, if they were to choose to avail themselves of this. I take it, therefore, that any other First Nation that has received delegated authority or statutorily delegated authority but something short of a final agreement, that qualifies as a treaty First Nation, is not in a position to avail themselves of these provisions. Is that correct?

[3:20 p.m.]

Hon. D. Eby: I was teasing the member a little bit earlier about the second reading speech back-and-forth there, but I do appreciate doing committee stage with the member, because I often do learn something, even though I’ve spent time with staff on the bill.

The member’s question has resulted in an interesting answer from staff that I’ll share with him. If a government delegates a law-making authority to First Nations in the province, whether the federal government or the provincial government, it is possible, under these amendments, that a nation could ask, even though they aren’t a treaty First Nation, to be considered as a treaty First Nation for the purposes of these provisions to be added by regulation.

The member will see, under 4(b), the definition of “treaty first nation” is “a treaty first nation prescribed by regulation.” So to the extent that government is delegating a law-making authority to a First Nation in the province, that nation could request to be added to the regulation and have that violation notice prosecuted in the Provincial Court.

M. de Jong: Okay. I don’t think I’m going to quarrel with the intent. I think I might take a little bit of issue with the mechanism for doing so. It sounds like what the minister and the government want to do is create a mechanism by which a First Nation that may not have a final comprehensive agreement but has received delegated authority over some areas can take advantage of these mechanisms to allow the Provincial Courts to adjudicate violation tickets.

I don’t think I quarrel with that, but it sounds like the mechanism for doing that is to designate them a treaty First Nation. I think that’s going to become awfully confusing. My experience goes back a few years, but there are also some First Nations for whom that term “treaty” has, for them, some negative implications.

I guess the first question is: have I understood that correctly? The prerequisite to taking that step is to designate a First Nation as a treaty First Nation, even if they don’t have a treaty?

Hon. D. Eby: The member is correct. It’s a defined term. A treaty First Nation is a nation that is defined in the regulation. There is not a restriction on government that would prevent a non-treaty First Nation from being designated so for the purposes of this act alone and only in the circumstance of the delegated authority or jurisdiction from government to create an offence.

I’ll take the member’s point about potential confusion, but the impact on anybody receiving a ticket or participating nations would be arguably very minimal. The request would come from the nation to government. They want to participate in this program, and they’ve created a violation, and they want to go through Provincial Court. They would be added by regulation if they had that delegated authority or jurisdiction or that authority through a treaty.

M. de Jong: Well, I know enough about the complications of this area to know we’re not going to redraft this on the fly. I think there would have been a better way to do that. To create the legal myth, for an individual purpose, that a First Nation is a treaty First Nation when they are not, I think is going to be fraught with…. Maybe at some point in the future, there is to include a subdefinition of a non-treaty First Nation as prescribed by regulation.

Thanks to the explanation from the Attorney, I get the mechanism. I don’t think it’s a great mechanism. Not that the world is going to stop turning, but it’s not the best way to do this.

That’s it on 4, hon. Chair.

[3:25 p.m.]

A. Olsen: Part of the reason why I like following the debates between these two members is because I learn something as well.

I just have a question with respect to the line of questioning that was coming from the member for Abbotsford West on treaty First Nation. How do historical treaties…? We’ve got a number of historical treaties in the province. How do they fit within the definition as has been discussed here in the last few minutes?

Hon. D. Eby: The immediate answer is: we don’t have any understanding that any of the historic treaties create a jurisdiction for a violation for law-making ability that would create a violation that could be enforced in Provincial Court. The longer answer is that there are many agreements that have been entered into with, for example, Treaty 8 First Nations that could have those kinds of provisions in them. So they would fall within this discussion that we’re having about a defined treaty First Nation under the amendments that are in front of the House.

If one of these nations had that jurisdiction, whether it was through the historic treaty or through a modern agreement that was not a full treaty, they could request to be included in this provision and have those offences prosecuted in Provincial Court.

A. Olsen: Just one final question on this. The right within the Douglas treaties to hunt and fish as formerly…. Presumably, there would have been some law-making capacity within those communities. So when there is an historic treaty that identifies the right to do something as formerly…. For example, the right of the SX̱OLE, the reef net fishery, had a whole series of laws and rules around it that we’re following.

I don’t know the answer to this question. I’m very curious, in fact. Does that treaty, in protecting the right to do something as it was, presumably including making laws around it…? How would that apply to this legislation we’re debating today?

Hon. D. Eby: I remember how excited I was to learn something about the bill, even though…. Staff have just advised me that the member for Abbotsford West’s questions and the member for Saanich North and the Islands’ questions have created a bit of a flurry behind the scenes. Leg. counsel was contacted, and they said, actually: “What are you guys talking about? Treaty First Nation is defined in the Interpretation Act.”

That is the interpretation that we intended that should be used in this bill. Treaty First Nation means a treaty First Nation, which explains a couple of things. First, that the member for Abbotsford West’s instinct that this was a rather clunky mechanism, which is not my experience with leg. counsel; they’re usually very careful about this kind of thing…. His intuition was right. That is not what leg. counsel intended. That’s not what government intended. Treaty First Nation is defined in the Interpretation Act.

And to the member for Saanich North and the Islands, the questions about jurisdiction that flows from the historic treaties, the treaty First Nations are defined in the Interpretation Act, and I will get that member the definition for that. I don’t believe it includes the Douglas treaty.

M. de Jong: Thanks to the Attorney for indicating the conversation that’s taking place. I guess we are obliged to ask: are his officials and leg. counsels sufficiently concerned about this to want the committee to hold off?

My sense is this might be a fairly…. This is not something we’re going to fix on the fly here. But are they sufficiently exercised about this to want to have the section held back to consider further?

[3:30 p.m.]

Hon. D. Eby: I don’t know where staff are at, but I am sufficiently concerned to want to be 100 percent sure when advising the House about the meaning of this provision. I’ll suggest that we stand this section down and proceed to the other sections.

This section stands alone, in terms of the definition of a treaty First Nation. We can return to this section once I have a clear answer for the House, before members have to vote on it.

The Chair: The Attorney has suggested we stand down clause 4. We will come back to that after proceeding through all the other clauses.

Clause 4 stood down.

On clause 5.

M. de Jong: The section amends the existing section 11 by eliminating the words “under section 14.”

[N. Letnick in the chair.]

This is about commencing proceedings. I understood this to mean that the reason section 14, which lays out all of the information and details and requirements of a violation ticket…. That reference in section 11 had to be removed because it is now possible, or it likely will be possible, for proceedings to be commenced in two different ways: a violation ticket under section 14, but also a treaty First Nation violation ticket.

Does that explain the need to delete, in section 11 of the Offence Act, the reference to section 14?

Hon. D. Eby: The definition of a violation ticket already refers to section 14, so removing the reference “under section 14” eliminates that redundancy. Also, given the proposed amendment to the definition of “violation ticket” to include violation tickets issued under treaty First Nation laws, removing the reference to section 14 also allows section 11 to include violation tickets that are issued under those laws.

The member is right. I would just add on to it that the effort here was to remove the redundancy, as well, in the definition of “violation ticket.”

Clause 5 approved.

On clause 6.

M. de Jong: We’ll deal with clause 6 in two parts.

So 14.2(1) lists the existing provisions of the Offence Act that will apply to a treaty First Nation law, and then sub (2), those sections which won’t apply. The part in sub (1) that I wanted to quickly canvass says that section 8 of the Offence Act will continue to apply in relation to disputes of a violation ticket.

Section 8 is the jurisdiction section of the Offence Act, and it speaks to this: “…every justice has jurisdiction to try, determine and adjudge proceedings to which this Act applies in the territorial division over which the justice has jurisdiction.” Does that mean a prerequisite to this working is that a justice, a judge of the Provincial Court, must secure jurisdictional authority over treaty settlement lands?

[3:35 p.m.]

Hon. D. Eby: It’ll take me a moment to get an answer for the member on his question. I’ll say just in brief that it’s not the intent of government — the meaning to which the member has ascribed this section.

The Clerk was kind enough to pass up the Interpretation Act so that I could read it into the record. Actually, I’ll wait until we go back to section 4, just to avoid confusing things. If the member could give me one second, we’re just going to clarify why we do not believe that that meaning is relevant to this section.

The Provincial Court has designated a courthouse for treaty First Nations. This was done years ago so that each nation has a designated provincial courthouse where these matters will be determined.

M. de Jong: Not to belabour the point, as I recall, a designated courthouse might be different than vesting, in a judge, jurisdictional authority. Or maybe it’s not. Maybe one goes with the other. I wonder, though, given the composition of the…. It’s the treaty that I’m thinking about and the complexity of the treaty, where First Nations were understandably very concerned about preserving jurisdictional authority over treaty settlement lands.

Whilst I accept and understand what the Attorney is saying about having designated a courthouse as the place where disputes would be settled — that is a practical issue and it’s important that that was done — is the Attorney satisfied, pursuant to section 8, and having regard for what the treaties say, that a Provincial Court judge has the required jurisdiction to adjudicate disputes emanating from treaty settlement lands?

Hon. D. Eby: I’m worried we may be talking at cross-purposes here. I’m not 100 percent sure that I’m getting the member’s question.

There are a couple of pieces, I’ve been advised. First of all, in the Tsawwassen First Nation treaty, for example, it’s really explicit. It says that jurisdiction for offences created using the authorities under the treaty will be adjudicated in Provincial Court. The Provincial Court has designated specific courthouses, and Provincial Court judges have jurisdiction. They have it provincially, but there’s a designated courthouse where there’s this expertise, and so on.

If there’s a dispute over territory…. The only disputes that this legislation is intended to apply to are violations of laws that are put in place by the nation, pursuant to the treaties, under the jurisdiction that they have assumed under the treaty, and not any other disputes.

[3:40 p.m.]

I think that is responsive to the member’s question, but I’ll take his advice about it if he wants to clarify a little bit more for me and walk me through what his question is.

M. de Jong: I think we’re getting there. I may have expressed this clumsily, and I’ll just take one more crack at it by way of an example.

I’m driving along in Huu-ay-aht territory, and I get a violation ticket for speeding issued by the treaty First Nation that is the Huu-ay-aht. I show up in…. I’m not sure where it would be there, probably Port Alberni. I’m not sure which Provincial Court, but I’m assuming Port Alberni. I’m a smart guy, a smart aleck, and I say to the judge: “Well, that’s fine, except I don’t think that, Your Honour, you have jurisdiction. I don’t think you have the territorial division over which the justice has jurisdiction. I don’t think that includes treaty settlement lands.”

I think the Attorney General is saying, “Fear not. It actually does,” and all of those mechanisms are in place to ensure that it does. That was the essence of my question.

Hon. D. Eby: I thank the member for slowing it down for me. Yes, that’s correct. All of the pieces are in place for appropriate jurisdiction.

M. de Jong: Let’s drop down to sub (2). These are the provisions of the Offence Act that will not apply in relation to the dispute of a violation ticket issued under a treaty First Nation law. The first one referenced there is 16(1). So 16(1) is the response to a ticket and specifically, I guess, a non-response. What we would call this is a default judgment against the person getting the violation ticket, the deemed guilty. You get your speeding ticket. You don’t do anything. You’re deemed to be guilty. That provision does not apply, we are told.

Was that part of a request? What’s the rationale, and was there an expression of interest on the part of treaty First Nations to establish their own rules around that? What’s the reason for deleting sub 16(1) from the operation of the act as it relates to treaty First Nation laws?

[3:45 p.m.]

Hon. D. Eby: The member has asked about, essentially, a default judgment. The way that this is structured is that the default is going to be under the law established by the nation, rather than by the Offence Act.

Coming up in section 10, the member will see that we are proposing an amendment to subsection 16(2). The proposed amendment to 16(2), which does apply — 16(1) does not — says that failure to respond to a ticket includes a person who “is deemed to have pleaded guilty” under subsection (1) “or under a treaty first nation law.”

This construction is intended to put in the hands of the nation what timelines they feel are appropriate for deeming someone to have pleaded guilty and allows them to have control over their own laws and how they are ultimately prosecuted.

The default provision of the provincial law, sub 16(1), is removed by this section, and sub 16(2) is left, and it creates an enforcement mechanism, essentially, for the deeming provision under the First Nations treaty law rather than under the provincial law.

M. de Jong: Okay. Two things, I guess, flow from that. Having made the decision to proceed in that way, I guess what follows are, on a provincial basis, violation tickets adjudicated under the Offence Act. There’s one set of rules around timely response. I guess we have to contemplate that in the case of treaty First Nations and treaty First Nation laws, there may well be different default provisions as established by individual First Nations. Is that a fair conclusion?

Hon. D. Eby: That’s a fair construction, and it’s in ac­cordance with the agreement that was struck in the treaty that the nations would be able to do that. So it’s our treaty obligation to enable that.

M. de Jong: I expect there…. Well, maybe I shouldn’t expect anything. Rules of procedural fairness, though, would suggest that a violation ticket issued in respect of a treaty First Nation law would need to include the specific requirements for timely response and the consequences that flow from non-response. That’s my expectation, and I see the Attorney nodding.

I guess the question is — we both assume that is the case: what’s the mechanism by which we can assure people that that is the case?

Hon. D. Eby: The member is right in terms of what our expectations are. In this place, they’re not relevant. What these amendments are doing are operationalizing the authorities within the nations to set these provisions for themselves: deeming provisions, what the violations are, what the amounts of the fines are. All of these kinds of things are within the treaty. The authority is within the treaties, and these amendments are attempting to operationalize that.

The amendment that’s coming up under section 10 of this bill that’s in front of the House is to operationalize the ability to have a deeming provision if the nation wants to do that. What that looks like and what the timing is, and so on, will be determined by the nation in accordance with their treaty rights.

[3:50 p.m.]

M. de Jong: Well, let’s go down to section 18 again. That’s a provision that doesn’t apply. On the surface, it kind of makes sense, because it refers to the Insurance Corp. of British Columbia. But elsewhere in the bill before us, there are provisions that specify that where we see reference to the Insurance Corp. of British Columbia, we should read in treaty First Nation. I take it this is not one of those places, and the decision was made that this doesn’t need to exist.

It’s a provision that allows, in this case, the Insurance Corp., under certain circumstances, to cancel a violation ticket. Did treaty First Nations want to preserve….? Or should I assume, by virtue of its inclusion in part 6, that they did not want to preserve some governance authority to cancel a violation ticket prior to adjudication?

Hon. D. Eby: The core of it is — my understanding from staff — that cancelling a ticket should be preserved within the authority of the issuing nation as opposed to the Insurance Corp. of B.C. Section 18 relates to cancelling a violation ticket that doesn’t disclose an offence on its face. If you wanted to a cancel a ticket like that, you’d need to go to the relevant nation to do that, not to ICBC. This was a cooperatively drafted set of provisions with the nations.

M. de Jong: Thanks to the Attorney. No, I get that. I understand that. But I wondered about the reference elsewhere in the legislation that said, “Where you see Insurance Corp. of B.C., read in treaty First Nation,” so that were the provision to remain, it would make clear the treaty First Nation’s authority to cancel a ticket, unless I have read the cross-references incorrectly.

Hon. D. Eby: The nations don’t need this section to have that authority to cancel a ticket. So reading through other provisions where it says ICBC, reading in the First Nation is not necessary, because all of those provisions and authorities are contained within the treaty rights of the nation to establish offences, cancel tickets and these kinds of things. This is about the prosecution of valid tickets in Provincial Court.

M. de Jong: Then simply to…. Two final areas in this section. Sub 81(8) is the general regulatory provision as it relates to the Lieutenant-Governor-in-Council. I take it that section is redundant insofar as treaty First Nation laws and treaty First Nation violation tickets is concerned?

Hon. D. Eby: The member is correct. It’s not necessary.

M. de Jong: And then finally on this sub-subsection (2)(f), I just found the language really general and not the kind of thing I have been accustomed to see from leg. counsel. The following provisions do not apply: sections 16, 18, 18.1, 31, 81, oh, and by the way, anything else that doesn’t apply to violation tickets. Are we certain that in the hallowed spaces of drafting precision that that phraseology is sufficient to avoid confusion somewhere down the line?

[3:55 p.m.]

Hon. D. Eby: Once burned, twice shy. The member’s Spidey sense was tingling about another provision, and I assured him that that was…. And then I had to correct myself on the record.

Let me say this. I am advised that the drafting of this provision is deliberate. The Offence Act is an antiquated statute that has not been modernized. It is very complex, and the sections are interrelated. There were twin concerns, both of inadvertently listing a section that did not apply, that perhaps some case, somewhere, said could potentially apply, or the reverse: inadvertently not excluding a section that applies to, for example, long-form information and having it apply inadvertently to a violation ticket.

The drafting choice was made to, say, for a court that is asked to look at a violation ticket in a section of the act, make sure that the sections of the act that don’t, in the court’s opinion, apply to violation tickets should not apply. Those that do, should.

The concern of the drafters was inadvertently applying the wrong sections to First Nations offences or inadvertently excluding a section that, actually, a court, it would turn out later, might need. So the member is right. It is unusual drafting, and it is due to the unique and unusual nature of the…. Well, not unique, but certainly due to the nature of the Offence Act as being quite an old statute with many overlapping provisions.

Clause 6 approved.

On clause 7.

M. de Jong: I’m looking at 7 and the amendment that is contained in 3.1. So this is an amendment, now, to section 15 of the Offence Act, which relates to disputing a ticket, and it lays out a person to whom a violation ticket has been issued by a treaty First Nation under treaty First Nation law, where they’ve been served or it’s been mailed, and that person may dispute the allegation of the ticketed amount indicated on the ticket in accordance with the procedures and with the time provided under the applicable treaty First Nation law.

I think the practical question that flows from this for the average person is: what’s the attorney’s expectation, and what assurance, if any, has he received from the treaty First Nations about the ability to access those laws? Let’s start there, since everything flows from the treaty First Nation law, which will, in this case, give birth to a violation ticket that may well apply to engage someone who is not a member of that treaty First Nation.

[4:00 p.m.]

Hon. D. Eby: Modern treaty First Nations do have to maintain a public registry of laws under the final agreement. But if there was a dispute about that or there was some confusion about it or if the provision was not there, our treaty obligation is to enable the treaty First Nations to issue these tickets and to have them prosecuted in Provincial Court. It wouldn’t be for us to amend the Offence Act to put additional requirements that were not part of the final agreement into the final agreement through amending the Offence Act later.

Happily, I’m advised by staff that the modern treaties do include that requirement of maintaining a public registry of laws.

M. de Jong: The expectation, therefore, would be a collection…. Dinosaurs like me still go to paper copies of revised statutes. But the expectation is that there would be, online, a collection of Huu-ay-aht or Tla’amin or Tsaw­wassen laws which the recipient of a violation notice could consult to determine precisely the law that they are alleged to have transgressed and then defend themselves accordingly if they chose to.

Hon. D. Eby: The treaty First Nations, per final agreement with government, are required to maintain a public registry. What form that takes and how the nations establish that public registry…. There is discretion in how the nation does that. The requirement, on their end, is a public registry, and on our end is the ability to enforce violations of those laws through Provincial Court.

I just wanted to be clear about what expectations may be in this place versus how the obligations are realized. The obligation is a public registry. The obligation is on the treaty First Nation, and there is discretion in how they realize that, but there does need to be a public registry. Similarly for us, there does need to be a mechanism to enforce this through Provincial Court.

M. de Jong: Last question on this point. And it is a question. Would it be fair to say that accessibility to that public registry on the part of an individual who has received a treaty First Nation violation ticket, pursuant to a treaty First Nation law, would very much go to the question of procedural fairness and, were reasonable access not afforded, would be potential grounds for dismissal?

Hon. D. Eby: The extent to which a registry was public, and that a nation fulfilled its obligation to have a public registry so that the law could be known, could potentially be an issue for court and could potentially be considered in a particular ticket prosecution.

M. de Jong: Do the remaining provisions of section 15, as they relate to disputing a violation ticket, continue to apply?

[4:05 p.m.]

Hon. D. Eby: Section 7 of this bill, (a)(3.2), reads: “For certainty, subsections (1) to (3) and (4) do not apply to a dispute of a violation ticket issued under a treaty first nation law.” That is a subsection that’s added to section 15, so it excludes the application of those subsections of section 15. The member will see the other sections, as amended, in the bill in front of the House.

Clause 7 approved.

The Chair: I understand that the Attorney has information regarding clause 4. Is that correct? Does the member for Abbotsford West wish to go back to clause 4? Or would you like to wait until the end of the bill?

Interjection.

The Chair: Attorney, is that okay?

On clause 4.

[4:10 p.m.]

Hon. D. Eby: The definition of “treaty first nation” in the Interpretation Act says, as follows: “‘treaty first nation’, as the context requires, means (a) a first nation that is a party to a final agreement, or (b) the government, as constituted under the final agreement and constitution, of such a first nation.”

That definition applies to this bill that is in front of the House and restricts the applicability of these amendments to treaty First Nations which are First Nations that are party to a final agreement. Just to clarify, in my initial answer, when I listed the nations, we talked about Nisg̱a’a being eligible but deciding not to participate. That is the group of nations that this bill will apply to.

If the members would please disregard my answers to the questions that went down that meandering road, and led to some confusion in the House, I apologize for that. Hopefully, with that clarity, the members will be able to understand what they’re voting on, Mr. Chair.

M. de Jong: Yes, I think that’s helpful. The conversation we had about the ability of other non-treaty First Nations taking advantage of this legislation doesn’t apply. They wouldn’t be able to do that?

Hon. D. Eby: That’s correct. The regulation-making section would be for other treaty First Nations that enter into a final agreement with government.

Clause 4 approved.

Clauses 8 to 13 inclusive approved.

On clause 14.

M. de Jong: Not a huge point. It involves money, so I guess it’s always a relevant point. This refers to the transfer of ticketed amounts. We’re dealing with a situation in which a person gets a violation ticket issued with respect to a treaty First Nation law — a treaty First Nation violation ticket that is, I guess, challenged and adjudicated in Provincial Court, with a finding of guilt, and a fine is assessed.

That fine is paid to the provincial Crown — if I’m getting any of this wrong, I’m sure the Attorney will correct me — but the revenue is due to the First Nation, pursuant to the treaty agreement.

As I understand it, this provides the authority to transfer that amount to the First Nation, but it’s a very specific kind of authority. It’s a statutory appropriation, meaning that it’s not captured by a vote in this Legislative Assembly. It is an entitlement. Well, it’s an obligation, but there is also a statutory authority on the part of the provincial Crown to transfer that money on to the First Nation without the requirement of seeking spending authority in this chamber. Is all of that a correct description of what is taking place here?

Hon. D. Eby: Yes, that is correct.

M. de Jong: I’ll ask this question, knowing that these were matters that were considered at the time these seven treaties were negotiated, but it is a direct flow-through. There’s no deduction for court costs or for administrative costs? The amount of the fine…. If it’s a $100 fine — administered by the Provincial Court judge with respect to a violation ticket — then, upon receipt of that $100, the full amount is transferred to the treaty First Nation?

Hon. D. Eby: That’s correct, and it’s consistent with the treaty language.

M. de Jong: I had one other question, but I think we’re going to get to that. I can advise the committee that my next question related to the application of the victim fine surcharge, which I think shows up in section 22.

[4:15 p.m.]

I was going to ask, just for the convenience of staff, that if we passed sections 14, 15 and 16, and then were to go briefly to the two sections on the Safety Standards Act and the Victims of Crime Act, it would save having the Children and Family folks come in and out twice. I guess the first order of business would be 14, 15 and 16.

Clauses 14 to 16 inclusive approved.

M. de Jong: I wonder if we might deal with sections 20, 21 and 22? I don’t think we’ll be long, but that’s the Safety Standards Act and the Victims of Crime Act. I can tell the Attorney that on section 22 my only question was going to be the rationale for not applying the victim….

The Chair: We’ll stand down clauses 17 through 21.

Clauses 17 to 21 inclusive stood down.

On clause 22.

M. de Jong: The provision makes it clear that the provisions of the victim surcharge levy do not apply with res­pect to violation tickets and fines collected under treaty First Nation violation tickets. What was the rationale for that? It struck me that the Attorney might have been confronted by arguments from First Nations that said: “We wouldn’t mind having access to those additional resources as well.” What gave rise to the inclusion of section 22?

Hon. D. Eby: This was at the request of the treaty nations. I’m advised that one of the reasons — there may have been others — for it was that, most likely, the most frequent folks who are going to be issued tickets under treaty First Nations laws are treaty First Nation members. The treaty First Nations did not want to be adding additional levies onto their constituents which are not necessarily going to return a benefit back to the community.

The victim surcharge levy goes to provincial programming, which is provincewide. That is the policy rationale for that.

Clause 22 approved.

The committee recessed from 4:18 p.m. to 4:19 p.m.

[S. Chandra Herbert in the chair.]

On clause 20.

The Chair: We’ll bring this committee back into session. We are on clauses 20 and 21, Safety Standards Act.

[4:20 p.m.]

M. de Jong: I think we have heard in part about the circumstances that have given rise to the need and the desire to amend the Safety Standards Act — which, in the instance involving a trampoline, was indeed tragic. I think the motivation here is not in any way, shape or form in doubt. I do think we have a role, though, and a job to try and make sure we’re hitting the mark with this and not having unintended consequences.

I had a look at the Safety Standards Act and the Safety Standards Regulation that exist and that already apply. As one of the defined regulated products, we have amusement rides, and now we’re going to have a regulated product: activity amusement devices. Now, I’m going to say that I’ll try not to take more time than is necessary here. I have to believe that is a purposeful choice. We didn’t amend it to say “amusement rides include trampolines,” which I suppose would have been another way to be certain that we are capturing the situation with trampolines.

The government and the Attorney have chosen to create a new definition. I don’t know if it’s a sub-subdefinition. It looks the way it’s numbered like it is. I don’t even know what the significance of that is — sub (i.1). But anyway, I guess that’s just a numbering system to slot it in there without having to renumber everything else.

What distinguishes an amusement device from an amusement ride, because lot of stuff flows from that.

Hon. D. Eby: Yes, the member is right. This, although feeling a bit arcane, is an incredibly relevant provision to a number of families in the province because of tragedy — a family in Richmond who lost a dad who jumped into a foam pit and broke his neck, a family in Victoria whose daughter broke her back jumping into a foam pit. These were both at so-called trampoline parks. That is the mischief that this is aimed at.

We would like Technical Safety B.C. to oversee this growing sector. Understandably, in the rainy Lower Mainland, and not specific to the Lower Mainland either, these indoor kinds of amusement parks are growing across the province, so we would like Technical Safety B.C. to be in there and have a look to make sure that these kinds of tragic outcomes don’t happen when a family goes out for a fun weekend.

The difference between an amusement device, which is what we’re adding here, and an amusement ride, which is already regulated, is that an amusement device is generally not mechanized and relies on either gravity or human power. An amusement ride, which is already regulated, is typically mechanized and usually move a rider through a set course, like roller-coasters or other rides at the PNE. Those are already regulated.

“Amusement devices” could be seen, I understand, to be very broad. I mean, there are so many things that are potentially amusing. Amusement devices could be really anything. It could be a TV. It could be a baseball glove. But it’s not. It’s a term of art, I understand from industry, that’s understood by industry. It’s the same term that is used in the standards that are proposed for adoption under the regulation.

There will be limits in the regulation requiring the provincial safety manager to do a risk assessment before any other amusement devices are considered for regulation. That risk assessment is going to include criteria like the type and severity of potential injury, the likelihood of an injury occurring, the ability of patrons to control their exposure to risk, whether users include children and young adults and whether regulatory oversight can reduce risk and eliminate hazards.

[4:25 p.m.]

On that note, I will point out that I’m joined in the House today by Aman Gill. He’s the manager for safety policy, building and safety standards branch, within the Ministry of Attorney General, who’s assisting me here today.

It is an application of that policy before any amusement devices are added as being regulated. That’s how we’ll ensure it doesn’t capture a whole array of devices that peo­ple could probably imagine in this place. I heard the Leader of the Third Party ask about a specific definition for the term, and that’s why I went a little more into depth than the member’s question might have indicated.

M. de Jong: The Attorney’s answer is helpful because it partly illustrates, I guess, the issue arising from, again, what I believe is a very well-intentioned proposal to amend the act. It is all of those other devices that could conceivably be captured by this.

The minister, I think, is saying that this is designed to address a specific type of activity, but the government has chosen not to redefine an amusement ride, for example, to include a trampoline park, which would have been one way to make very clear what the objective is.

If we go to the regulations, “amusement ride” is de­fined. I won’t read it into the record. It includes recreational railway, which is interesting, but the mechanical part of it that the Attorney referred to, I think, is reflected in that definition.

Has the Attorney got a draft definition that he can pro­vide to the committee for what may well become a very important term going forward from a regulatory point of view: amusement device? Do we have a definition?

Hon. D. Eby: We don’t have the final proposed language for regulation, but the working definition currently is — subject to potentially significant work by leg. counsel, so I provide it simply in the nature of advice to the member to give an indication of where we’re headed, as opposed to that this is likely to be the final language: an “arrangement of technical systems that individuals move through or on primarily by their own action or gravity and are not mechanized.”

Some of the intent here is that when you’re talking about a trampoline versus a foam pit versus some of these…. It’s a rapidly evolving area, so just making sure that we’re capturing the intent here of the specific types of parks where these injuries took place, but also that they may choose to modify their devices to avoid oversight, for example, and that are trying to capture, in our definition, sufficiently the intent so Technical Safety B.C. can apply their policy around the likelihood of serious injury, the population that’s using it and so on in determining whether or not to regulate a particular device.

M. de Jong: We’ve all seen, even if we haven’t partici­pated, the advent of facilities like skateboard parks. I’m told, when I toured the Rick Hansen centre for spinal cord research, that the greatest cause of spinal cord injury now is mountain biking. Now there’s a mechanical dimension to that. We know that taking your mountain bike on a mountain bike trail is not, I don’t think, an amusement ride in the way that the act…. Does that park, if it’s a formal location…? Is the definition going to be broad enough to capture that kind of activity, or a skateboard park?

[4:30 p.m.]

The relevance, I think the Attorney can understand, is further on in the regulation. Ironically, the one for amusement rides is contained in something called the elevating…. It’s the elevator regulation that has the amusement ride. I’m guessing that what the government contemplates is a similar set of regulatory provisions which govern everything from who may do work on an amusement ride, classes of contractors licences for work.

Again, to bring this back, I don’t think the concern is about those kinds of provisions applying in the case of the specific example the Attorney General has referred to, but the possibility that the breadth of this definition could begin to capture…. The Attorney…. I think he came up with this on the fly, but is there going to be a whole new, broad level of regulation for people who sell electronics, TV and entertainment devices, amusement devices — games, I guess? Again, there’s a mechanical dimen­sion to that, but it’s a pretty personal mechanical dimension.

The Attorney has spoken about the direction the government is headed in. I suspect in the days ahead we’re going to refer to — not in this context — something the Privacy Commissioner had to say about another piece of legislation, where he talks about having the ability to look at regulations in the context of…. I think that this is one of those cases where it would have been helpful — that’s why I mentioned it in second reading remarks — to have some certainty around the definition of an amusement device. We know what it’s intended to include, but it may be far broader than that.

I guess my question to the Attorney is, once that term has been embedded in the act, I presume the government intends to devise regulations somewhat similar to what ap­ply to amusement rides, tailored to the unique circumstance of an amusement device. At the moment, we are thinking about all of those things without really knowing what an amusement device is.

Hon. D. Eby: The overall philosophy of Technical Safety B.C. around these things is to only regulate in areas where there’ll be a meaningful safety benefit and not to interfere with the overall experience of people when they’re going through, currently, mechanized rides and soon, hopefully, if the House sees fit to approve this, non-mechanized experiences as well.

I’m trying my best to give the member a clear indication of where we’re going with this, in terms of the language that is going to leg. counsel to assist us in drafting the regulation. It’s a narrow definition, attempting to capture a set of technical systems that a person is moving through using their own power, but I think that kind of technical definition maybe takes away from understanding exactly what it is that is currently being looked at by Technical Safety B.C. and government.

In addition to the trampoline parks, it is possible and it is likely the new regulation may apply to the following devices. Bungee trampolines. There’s one in the Lower Mainland, one in the Interior and one in the Okanagan.

Go-karts. There are three in the Lower Mainland, one on Vancouver Island, two in the Okanagan and one in the Shuswap.

Portable climbing walls. There are six in the Lower Mainland, two on Vancouver Island, two in the North, two in the Okanagan and one in the Interior.

[4:35 p.m.]

Something called QUICKjumps. This is something that I wasn’t familiar with, but this is where a patron free-falls from a height before a device begins to slow the motion of the patron. There are two QUICKjumps on Vancouver Island, one in the Kootenays, two in the Okanagan and one in the Interior.

Something called a stunt airbag. There’s one of these in the Lower Mainland and one on Vancouver Island.

Trampoline parks proper. There are six in the Lower Mainland, two on Vancouver Island, one in the Okanagan and one in the Interior.

Although there are none currently, there is an experience called indoor skydiving, which…. In the event someone seeks to set that up in British Columbia, we would expect that that would be potentially captured as well.

There was some consideration around ropes challenge courses, but after analysis of the criteria that I indicated — type and severity of potential injury, likelihood of injury, the patrons using it, whether children are using it and whether regulatory oversight would, in fact, reduce risk — the determination of Technical Safety B.C., which government is adopting, is that it is no longer being considered for regulation. Most are located at camps and already have quite a strong culture of safety around them because it is a children’s camp.

M. de Jong: I think I’m pretty much done here. That’s helpful. For the folks watching in the wings, it would also be helpful in a situation like this to have a definition that the government intends to apply in the regulation.

Of the list the Attorney read out, though, the only one I found curious was the reference to go-karts, which I thought would have been covered by the existing definition of amusement rides. Is there a non-mechanized form of go-karting? It’s a slower sport, but it’s….

Hon. D. Eby: The reason why it’s not clear and it’s not currently regulated by Technical Safety B.C. — go-kart courses, that is…. The reason why go-kart courses are not is that although it is a mechanized device, it’s under the control of the patron. The mechanized device amusement park piece anticipates that this is…. Someone is moved through a course as opposed to having the control of the device. These go-kart courses are regulated in Ontario, and I think that the member is surprised — it matches my own — that we weren’t regulating this sector to make sure that it was safe. This amendment is proposed to capture that gap.

Clause 20 approved.

The Chair: Shall clause 21 pass?

Interjection.

The Chair: Let’s talk about clause 21. I think it’s the same section, or proposed section, of the Safety Standards Act.

Hon. D. Eby: It is. Hopefully, we can deal with that while I have staff here for the technical safety.

The Chair: Pardon, Attorney? Sorry.

Hon. D. Eby: Chair, you are correct. It is the same statute, and it’s the same staff, I believe — section 21.

The Chair: Okay. No questions on 21?

Clause 21 approved.

The Chair: All right. I understand we are now returning….

Hon. D. Eby: Mr. Chair, if we could have a three-minute recess. We’re changing staff and, I think, potentially ministers, as well, here.

The Chair: Thank you, Attorney.

We’ll be in recess for around three minutes. Thank you, Members.

The committee recessed from 4:39 p.m. to 4:40 p.m.

[S. Chandra Herbert in the chair.]

On clause 17.

The Chair: I’d like to call this committee back into session on clause 17, Representative for Children and Youth Act.

Hon. D. Eby: I am joined by Anita Nadziejko, the director of the policy and legislation division, and Bonnie Wai, the senior policy analyst, policy and legislation division. I look forward to the members’ questions.

K. Kirkpatrick: Hello to the staff and to the minister.

Well, I’m very happy to see the included adults coming in. I know that it’s been a recommendation from the previous representative and the current representative. This is just clarification on a couple of things.

When this act is changed and comes into force, does this mean that there will be an automatic enrolment into the AYA for those up to 27 who have come out of any type of government care?

Hon. D. Eby: The provision enables the Representative for Children and Youth to advocate for this cohort and, specifically, adults under 27 who are receiving or are eligible to receive community living supports — so they don’t have to actually be getting them, but maybe they want to receive them or they’re eligible — or received, as children, a reviewable service.

That’s a considerable expansion of the oversight of the representative, and it was recommended by the committee. It’s not about their ability to receive a service specifically. It’s about the ability of the representative to advocate for and to look into the situation of these individuals.

K. Kirkpatrick: Thank you to the minister for that clarification.

Do we know the number of young people who will now be included? What will the increased number be in terms of those that will have access to the programs and the representative?

Hon. D. Eby: The representative estimates this would mean, in terms of the group on whose behalf she’s permitted by legislation to advocate, about a 60 percent increase in eligible young adults under the expansion of this criteria. In real numbers, from a population of about 4,000 individuals, a population of about 65 individuals.

Again, just to underline, this is not eligibility for services but eligibility for advocacy by the RCY on behalf of those individuals. So quite a significant increase.

K. Kirkpatrick: Thank you for that question. That’s great.

Following on that, will there be an increase in staffing and budget for the representative in order to be able to have the resources for that increase?

Hon. D. Eby: For various reasons, we engaged with the RCY on this question. The RCY advised us that only a small percentage of eligible young adults actually seek Representative for Children and Youth advocacy.

[4:45 p.m.]

The RCY believes that this may be an issue of lack of awareness and an ongoing piece of work for both the RCY and for government and that COVID also had impacts on this, which created barriers for the RCY to do the in-person outreach that the RCY would typically do in a non-pandemic situation, as well as communications with young adults and service providers themselves.

All of those factors together have created a situation where the RCY thinks there will only be a small increase in requests for services, and the RCY’s advice to us was that even coming out of COVID, it’s likely there will not be a significant increase in advocacy. But if there were, the RCY would come to government, and it would go through the regular budgetary process. We’ve not had that request.

K. Kirkpatrick: Just for the staff and the Chair, I have no more questions until 24, and there may be different staff in between that.

Clauses 17 to 19 inclusive approved.

The Chair: Now we come to clause 23. That is what comes next.

We will now take a three-minute recess.

The committee recessed from 4:46 p.m. to 4:47 p.m.

[S. Chandra Herbert in the chair.]

Clause 23 approved.

The Chair: Now moving on to clause 24. I understand that we will need some staff for that, so we will take a three-minute recess. Thank you.

The committee recessed from 4:47 p.m. to 4:51 p.m.

[S. Chandra Herbert in the chair.]

On clause 24.

The Chair: We are here on clause 24, looking at the Adoption Act.

Did the minister want to say anything before? Or we’ll just dive right in.

Hon. M. Dean: Thank you, Chair. I’d just like to introduce today Patrick Vert, who’s with me, as well as James Wale and Carolyn Kamper.

K. Kirkpatrick: It’s an embarrassment of riches, in terms of how many questions I have relative to how many wonderful staff are in the room here, so I will make this worth your while.

Can I start with respect to the consultation process? What consultation process was undertaken with Indigenous children’s, family services groups, such as VACFASS and other ones?

Hon. M. Dean: A lot of consultation has been undertaken. From January, the beginning of this year, we sent letters to 213 Indigenous partners, and we had additional correspondence with 17 Indigenous partners who responded to previous engagement letters.

We connected with Indigenous organizations, such as Métis Nation B.C., Métis Commission, Native Courtworker and Counselling Association of B.C. There was a number of First Nations that we had direct contact with as well. We also had a town hall which First Nation Chiefs from across B.C. attended, along with FNLC.

[4:55 p.m.]

Then we had particular contact with four others — follow-ups of phone calls and letters. Then we discussed the draft RFL with FNLC and with treaty First Nations as well. We sent the draft to FNLC, Modern Treaty Nations and nations and partners who responded to previous engagement letters and Indigenous organizations as well.

We continued discussions around early stages of the draft legislation with FNLC and Métis Nation B.C. as well. We also shared late-stage draft legislation with Tla’amin Nation.

K. Kirkpatrick: This is just a clarification question for me. My understanding, the change that’s being made, is the insertion of 70.2, which is to ensure — and this is a substantive part of this — that an Indigenous adoptee who is entitled to be registered under the Indian Act, on that register, is indeed registered. I just want to confirm that that is the purpose of this, primarily.

Then, because I don’t know and I’m curious, how was that being done previously?

Just an apology if I’m confusing things there. When I asked that question, I realized I bumped over to No. 25.

The Chair: Are there further questions on 24? No? Okay, maybe we should deal with that at 25.

Clause 24 approved.

On clause 25.

The Chair: On clause 25. I believe the question has been asked.

Hon. M. Dean: Because of the Sixties Scoop that hap­pened here in Canada, there were many displaced people or people brought up in adopted families who didn’t know their birth history. To be able to get the adoptee birth-family information, the feds had to ask the province for that information so that the federal government could make that status determination when lots of people from the Sixties Scoop were asking for their status.

Previously that was done under an MOU, but then there was a large influx from a class action that took place that then led to the discovery that there was a legal gap in sharing the information. That’s what we’re now fixing.

Clauses 25 to 30 inclusive approved.

The Chair: I believe this is a change of ministry now. We’ll take a three-minute recess, if we need it, so we can change the minister who will answer questions, if there are any.

The committee recessed from 4:59 p.m. to 5:02 p.m.

[S. Chandra Herbert in the chair.]

On clause 31.

The Chair: We’re on clause 31, Energy, Mines and Petroleum Resources Statutes Amendment Act, 2018.

Hon. B. Ralston: Before we begin, I’d like to introduce the staff who are with me. I have May Mah-Paulson, who’s the assistant deputy minister of the oil and gas division in the ministry. Claire Gibbs, who’s behind me, is the manager of policy and legislation, regulatory and infrastructure branch. Beside me I have Sara Gregory, who is the vice-president, legal services and regulatory affairs, with the Oil and Gas Commission.

T. Shypitka: Thanks for the opportunity. I’ve probably got most of my questions surrounding clause 32, but I don’t want 31 to pass me by before it’s too late.

If the minister could just provide me the rationale that made this amendment necessary. I notice in the bill that it’s housekeeping, but if he could maybe be a little bit more specific to that.

Hon. B. Ralston: There were amendments to the Oil and Gas Activities Act in 2018. This particular amendment was made in error. The provision refers to section 111.1(c) of that act.

[5:05 p.m.]

However, that provision — there is no 111.1(c) — should have referred to sub 111.1(1)(d) of the Oil and Gas Activities Act. The amendment is being proposed to correct that error. It will be repealed, because it’s not needed.

Clause 31 approved.

On clause 32.

T. Shypitka: The amendments to the Oil and Gas Activities Act will provide the Oil and Gas Commission with enabling powers to exempt oil and gas development permit holders from requirements of the Dormancy and Shutdown Regulation in circumstances that merit it and impose conditions on the exemption.

Essentially, this allows permit holders exemptions if it’s deemed necessary to extend conditions currently under the DSR. Can the minister comment on what consultation was done with First Nations regarding these exemptions, and whether or not there were any concerns with First Nations on what flexibility in these exemptions would mean to the timeliness of the cleanup of dormant wells?

Hon. B. Ralston: The ministry did undertake consultation with Indigenous peoples to ensure that the proposed legislation was consistent with the articles of the UN declaration as committed to by section 3 of the United Nations declaration on the rights of Indigenous peoples.

That was affected by consultations, and letters were sent to each First Nation with one or more dormant or or­phaned well sites in their traditional territories. There were 54 of those consultation letters sent. The letters included an invitation to meet with ministry officials to discuss the proposed legislation.

T. Shypitka: It’s my understanding that every First Nation that has a dormant well on their territory was consulted. It’s what I think I’m hearing from the minister.

Can the minister, then, tell me how long these consultations lasted for? What was the process in gathering the information?

[5:10 p.m.]

Hon. B. Ralston: I just want to be clear. Consultation letters were sent to the 54 First Nations. It wasn’t that there was consultation with 54 First Nations. They had 45 days to respond. Two nations did respond in writing. The first one said that they had no concerns. The other one raised concerns and there was an exchange of correspondence, creating a consultation record. There was an offer by the ministry to meet that wasn’t taken up. That’s where that process ended.

I would say, though, that if this proposed amendment passes, then the legislation will be taken up by the Oil and Gas Commission. They will draft a regulation, and there will be a requirement that there be consultation on the draft regulation prior to it being brought into force. The consultation record that was generated during this process will be forwarded to the Oil and Gas Commission, so they’ll be aware of the concerns raised by the particular First Nation that did respond and did raise concerns.

T. Shypitka: I’m trying to get a number on this. So 54 letters went out. I only heard two examples. One came back with something and one was maybe questioning some of the amendments that were being proposed, maybe not having full capacity of what was maybe going on. Am I to believe that of the 54, there were only two letters that the minister knows of?

Hon. B. Ralston: Yes. Those are not examples. This is the complete record of responses. One First Nation, just to repeat, replied and said they had no concerns and didn’t want further engagement. The other initiated a series of exchanges of letters and then, I think, went back and forth twice where those concerns were addressed by the ministry. There was an offer to meet by the ministry that was declined. So that’s the record of consultation.

T. Shypitka: It’s just a little concerning for me, I guess, that of 54 letters that went out, only two came back with responses. To me — that’s just me thinking here — that would be a red flag that maybe the message didn’t get across. We’ve heard lots of examples in this House of how COVID has slowed things down and people aren’t around and doing things.

Does the minister believe that the consultation is in accordance with DRIPA and having a fair consultation process with First Nation partners?

Hon. B. Ralston: As the member might well expect, there is a prescribed process given the number of consultations that are undertaken. The prescribed process was undertaken. The letters were either sent by registered mail or by email or by both. The ministry is satisfied that the letters by either means were received, so there was contact. Those are the responses.

T. Shypitka: Well, naturally, the minister would be happy with how it was conducted. That’s their ministry that did it. I’m getting more at the response. To me, if you had 54 letters go out and you only had two come back…. I don’t really care what business you’re in or whatever; that just seems that there’s a lack of feedback.

[5:15 p.m.]

I would be concerned about that, because this is amending a bill that will give exemptions, possibly, to permit holders for the cleanup of dormant wells, which we all know is a big concern with everyone in the province, especially when we have the United Nations Declaration on the Rights of Indigenous Peoples Act trying to guide us along this process so that everyone is well engaged and well informed and up to date.

Forty-five days, for a starter, doesn’t seem like a long amount of time. And the fact that you only got two out of 54 letters back is another red flag for me to say that people weren’t engaged. I’m a little surprised that the minister isn’t a little more concerned with that. He doesn’t seem to be. Maybe he is. He can clarify that if he wants.

I’m just very concerned that there’s just not a little bit more engagement and maybe not a little bit more effort to extend a deadline of 45 days, to maybe ask: “Do you need some more time? Were we not clear?” Those kinds of things. I think that’s fair to do, especially to our Indigenous partners.

I guess my next question is: for this amendment, what was the feeling from industry? What catapulted this ex­emption or this clause here, this amendment? What was industry’s part of this? What kind of negotiations did you have with industry that helped this amendment go along?

Hon. B. Ralston: The initial bill apparently had a typo in it that didn’t give this authority under the legislation. Typically, legislation of this sort, I am advised, would give the commission the kind of discretion to administer regulations like that. The industry assumed it. In fact, the department assumed it. It was only when leg. counsel looked at the legislation to begin drafting of the regulation that they discovered that the way in which the bill had been passed didn’t give that authority.

At that point, having identified it, then it was placed on a list for this process to amend it to give the commission that regulatory authority. But in order to get the regulatory authority legally, the legislation requires an amendment. That’s the process that we’re engaged in now.

T. Shypitka: So am I to believe, then, that this amendment was a manifestation of purely government? There was no input from industry or support or reaching out to industry at all?

[5:20 p.m.]

Hon. B. Ralston: Initially there was engagement with the industry in crafting these provisions. But in this process, it was discovered in the way that I described, and there was no engagement with industry. Industry and the Oil and Gas Commission assumed that the authority was there. When the legislative counsel pointed out that that authority, through the error and the typo in the legislation, didn’t exist, then this process was initiated. So there was no subsequent engagement with industry in the way that the member has asked.

A. Olsen: Thank you to the minister. What I think the minister outlined with respect to consultation is actually engagement. You engage the First Nations with a letter, but that does not…. That is a very, very old definition of consultation — to be as passive as this.

I think, with the passing of the Declaration on the Rights of Indigenous Peoples Act, we’ve actually committed to proper consultation. We’ve committed to recognizing Indigenous nations in a different way.

[N. Letnick in the chair.]

I’d just like to hear the minister’s perspective, if he has a perspective, on the differences between consulting, actually deeply consulting — I believe he understands what that means — and just simply sending a letter, a passive sending of a letter of engagement, and then waiting for the 45 days to expire and moving ahead anyway.

Hon. B. Ralston: I don’t disagree with the member’s point that the letter is the beginning of engagement. But the ministry was then, at that point, opening the prospect and expressing the willingness to consult further, depending on the response.

In the case of the one, there was one nation where there was a further exchange, and that’s what took place. As I’ve said, given…. I can’t really speculate as to what drove the lack of response from other nations. I am not able to advise, because I simply don’t know.

What I would say is that I would repeat what I had said before. Assuming that this passes, there will be…. The Oil and Gas Commission will devise a regulation, and then that will bring upon it a further opportunity to engage and consult if there’s a wish to do so.

T. Shypitka: Given the definitions of engagement and consultation have been accepted by the minister, and…. I guess the first question will lead up to my next one. When was this consultation conducted, these 45 days?

[5:25 p.m.]

Hon. B. Ralston: The first, initial letter is dated July 2. There was a response from the nation that wanted to engage further that came in August. There was an ex­change of correspondence that concluded near the end of September.

T. Shypitka: July 2 was when the letters went out, I believe you said?

Hon. B. Ralston: The date of the letter is July 2.

The Chair: Just a reminder to all members. If you’re not speaking or drinking, put on your masks, please. Thank you very much.

T. Shypitka: So letters were dated July 2. I’m just getting some timelines here because the Yahey v. British Columbia decision came out at the end of June. I’m wondering if that letter had any impact at all on consultation, through treaty 8, on what that means to those nations in Treaty 8?

Hon. B. Ralston: I couldn’t say. I don’t know. That would be speculative on my part.

T. Shypitka: Well, that’s concerning, for sure. I mean, it was a fairly large ruling that gave those nations inside the treaty 8 territory more rights on the impact on the territories that they reside in. Certainly, the cleanup of dormant wells would be something that would be in those territories.

The minister’s response that he doesn’t know if that was part of the plan…. Maybe I’ll give the minister another chance to describe what his feelings are towards the ruling and how that should impact, possibly, this amendment.

Hon. B. Ralston: I’m not sure that my feelings about the decision are really a matter of relevance.

The Yahey decision is a major decision of the Supreme Court. My ministry, the Ministry of Indigenous Relations and Reconciliation and the Ministry of Environment and Climate Change have engaged in a process. A negotiator has been hired. There have been ongoing negotiations with Blueberry. An interim agreement was reached on some of the issues that have arisen out of the decision. That was announced publicly.

[5:30 p.m.]

There are continuing negotiations about a more permanent process that would deal with the long term. There’s an obligation in the decision for the parties to report back to the Supreme Court by late December. All of that is ongoing, and I think that the decision is well known. Blueberry Nation, its council, its Chief and its legal representatives are deeply engaged with the provincial government and various ministries in the provincial government, led by a negotiator appointed by the Premier.

The Chair: I’d just ask members, if you’re having conversations, to take them outside, please. Of course, you’re not hearing me, because you’re talking. Thank you.

S. Furstenau: I just wanted to touch base a little bit more on the date of the letters being sent July 2 with a 45-day window for nations to respond to those letters. Given that we had, yet again, one of the worst wildfire seasons in British Columbia, and given the impacts of COVID on the operating functions of pretty much every organization in this province, I would expect already hard-pressed First Nations to be dealing with many pressing concerns.

Again, I think the question to the minister is: does he consider 54 letters going out, two letters being responded to, 50 percent of the responses not being favourable and no response from the other 52 nations that were con­tacted over six weeks of, we can all agree, a very challenging and difficult summer for pretty much every region in this province…. Does he consider this to be sufficient to meet the expectations that this House unanimously passed when we passed the Declaration on the Rights of Indigenous Peoples Act?

Hon. B. Ralston: Yes, I’m satisfied that in this particular case and for this particular piece of legislation, the consultation or the engagement process was adequate. I’ve also been advised that there was no individual nation, after the expiry of the 45 days, that came forward — later, in August, in September or even up until today’s date — asking that their views be considered. So I’m satisfied, based on the advice that I have, that the process met the requirements in this particular case.

E. Ross: In regard to this line of questioning, it comes back to the principle of Aboriginal rights and title in all its forms. We do have legal definitions of this, including a definition in the Constitution of Canada, section 35. I remember having this conversation with the then Indigenous Relations Minister when we were debating the United Nations declaration on the rights of Indigenous peoples.

[5:35 p.m.]

I tried to warn the government of the day not to throw out the foundation of the case law that had already been established and that would have answered some of these questions in the first place. Back then it seemed to me that it was unrealistic to achieve the goals of aligning every single piece of legislation in this House with the principles of UNDRIP, but it is what it is.

The definition of “consultation” doesn’t seem to be correct, especially when you think about arbitrary time limits on the First Nations’ ability to respond to an informational request from the government. In fact, that’s actually covered in case law. You can’t impose arbitrary time limits.

My question to the minister. What standard or definition of “consultation” is the government using to consult with First Nations on these provisions, not only in section 32, but actually every provision of the Miscellaneous Statutes Amendment Act (No. 2), 2021?

The Chair: Before I recognize the minister, if people want to have discussions, could you go do it outside, please. Thank you.

[5:40 p.m.]

Hon. B. Ralston: Just to respond to the member, the consultation that was undertaken here was undertaken pursuant to section 3 of the Declaration Act.

E. Ross: Thank you to the minister. But that disregards the Haida court case and the duty to consult.

What I think the other members of this House are asking is: was it meaningful consultation? That’s the real question. That’s the duty of the Crown. That’s the honour of the Crown that the B.C. government should be upholding. That’s in case law.

It’s troubling to hear this, because not only has the Haida court case set out the rules of what government has got to do in terms of consulting, Tŝilhqot’in took it to a higher level. So not hearing any of the principles that were decided in the courts of B.C. and Canada regarding Haida and Tŝilhqot’in actually tells me that there are no principles being followed here other than section 3 of a very vague bill, Bill 41, the United Nations declaration on the rights of Indigenous peoples.

I still find it difficult on how the government is actually achieving meaningful consultation not only with the foundational case law that was established over 40 years in Canada but also over its own bill, Bill 41, that was actually passed in this House.

If there is no real process based on case law or even based on section 35 of the constitution — and we do know that the government actually breached case law by imposing arbitrary time limits on the First Nation through correspondence — then I’ll ask this question: what was the process for accommodation for these First Nations that sent in their comments back to the B.C. government?

Hon. B. Ralston: This particular piece of legislation is enabling legislation. The concern raised by the First Nation was addressed. There was an exchange of correspondence. That record was passed on to the Oil and Gas Commission.

[5:45 p.m.]

When it comes to the point that…. Assuming this legislation passes, if it does, then the Oil and Gas Commission would then have the authority to draft a regulation. When they draft a regulation, they will be in a position to engage and have consultation on the actual regulation. They will have access to the record of what took place between the ministry and that particular First Nation and any other First Nation that wishes to engage on the regulation as it’s drafted.

E. Ross: Maybe I’m not being clear enough. Really, what we’re talking about is Miscellaneous Statutes Amendment Act (No. 2), 2021, and I’m not really referring to, specifically, 32, even though that’s the topic. I understand that. That’s the clause we’re….

Really, what we’re talking about is the Crown’s duty to consult not only on the case law precedents that were set out in Tŝilhqot’in and Haida but also in the government’s own UNDRIP, Bill 41, the United Nations declaration on the rights of Indigenous peoples….

The Chair: Excuse me, Member. Could you hold for a sec? We’re having some technical difficulties and just want to make sure we’re recording you.

Okay. Go ahead. Sorry for the interruption.

E. Ross: Thank you, hon. Chair.

What I’m really getting at is this technical amendment probably would not have constituted consultation unless the United Nations declaration on the rights of Indigenous peoples was enacted in this House, but UNDRIP was enacted.

I guess my real question is, in terms of section 32, did the Crown explain specifically what it would mean to a First Nations’ rights and title interest by section 32, when section 32 actually says “section 106 (3) of the Oil and Gas Activities Act, S.B.C. 2008, c. 36, is amended by striking out ‘section 111 or 112 (1) (a), (b), (c), (d), (d.1) or (d.2)’ and substituting ‘section 111, 111.1 (1) (b) or 112 (1) (a), (b), (c), (d), (d.1) or (d.2)’”?

That’s just one clause. There are 40 clauses in this that are actually just as complicated but have no substance in terms of what this really means — the overall legislation — let alone an amendment that was promised to be explained to and actually consulted, accommodated by UNDRIP, Bill 41.

In terms of the consultation activities, and what I’m hoping would be accommodation activities by the Crown, did the Crown fully explain what section 32 meant to the First Nations in terms of these sections and subsections?

Hon. B. Ralston: The letter did more than simply recite, as the member has done, the language of the proposed amendment. It explained in plain language what the proposed amendment was intended to do. In addition, accompanying the letter was a document that gave examples of how the amendment that was proposed might be used and explained what impact it might have on a dormant site that was in the territory of the affected First Nation.

Contrary to the impression that the member left, there was an effort to explain the amendment in plain language.

[5:50 p.m.]

E. Ross: This actually goes back to meaningful consultation and, where appropriate, accommodation. This is what was promised by Bill 41, UNDRIP. I will say that this probably would not have actually been addressed — the rights and title — if it wasn’t for Bill 41.

The standards were quite vague, quite general, but there was a promise made by this government that said they would do things different and that they would align every single piece of legislation that came through this House with the rights and title. Under that foundation was already the case law principles of Haida and Tsilhqot’in. To a certain extent, processes were used, like, say, in treaty negotiations of modern-day treaties.

In the case of meaningful consultation, with no real definition, I do know First Nations actually view meaningful consultation, accommodation, meaning government to government. Did the minister meet, as a government representative, with each member of the 203 bands that he mentions that were actually consulted through a letter? Was that followed up with 203 meetings with each specific First Nation on a government-to-government basis?

Hon. B. Ralston: Earlier I had stated that letters were sent to 54 First Nations. All of those were First Nations that were identified as having dormant well sites within their territory, and that was the basis on which the letters were sent. The letter, in addition to the explanation of the proposed amendment I described in the previous answer, also did offer to meet, should the First Nation wish to meet.

T. Shypitka: I’ll try to sum up. I know my colleague the leader of the Green Party has got a bunch of questions here, but I just want to kind of summarize and bring around full circle what we just went through for the last hour or so.

When I first asked the minister, the first question I asked him was: “Can the minister comment on what consultation was done with the First Nations?” And his response was: “Yes, we had consultation. Letters went out.” That was basically it. He was happy with the consultation.

We’ve learned through this last hour, though, that consultation does not just mean a letter going out. I think the minister realizes that is engagement. I think the member for Saanich North and the Islands made that point clear.

I guess the final question in this part, and then I’ll hand it over to the Green Party, is: does the minister believe that, considering the articles of DRIPA and the recent ruling of Yahey v. British Columbia, government has provided adequate consultation, not engagement, with First Nations inside and outside of treaty 8?

Hon. B. Ralston: The answer is yes.

S. Furstenau: I’m going to go back to what the government said about this clause. I know my colleague has already stated this, but I think it’s good to refresh everybody’s memory.

This clause “will provide the Oil and Gas Commission with enabling powers to exempt oil and gas development permit holders from requirements of the Dormancy and Shutdown Regulation in circumstances that merit it.”

My question is: could the minister please describe some circumstances that would merit this?

[5:55 p.m.]

Hon. B. Ralston: This discretion would be very much the exception, but there are circumstances where, for example, a permit holder is working diligently to meet the deadline that is imposed by the legislation and the regulation but is unable to meet the deadline due to technical challenges. That would be verified by Oil and Gas Commission staff.

There could be sites where well integrity issues such as surface casing vent flows prevent a permit holder from achieving their decommissioning targets. Sometimes site remediation requires longer than anticipated. A permit holder could be working as quickly as possible yet need more time. This administrative discretion then could be used to give permit holders the time necessary to complete the work safely and completely and impose conditions to require the permit holder to report back to the commission on their progress at a site.

S. Furstenau: Could the minister please let us know: what is the current regulation time frame that exists right now? What is the expectation of permit holders in terms of dormant well time frames for cleanup? Currently, how many companies are meeting those expectations?

Hon. B. Ralston: This is a little bit of a longer explanation because there are some complications here, but let me begin.

In 2018, Bill 15 amended the Oil and Gas Activities Act, enabling the Oil and Gas Commission to create requirements for permit holders of dormant oil and gas well sites. Following these amendments, in 2019, the commission implemented the Dormancy and Shutdown Regulation to speed up the rate at which dormant sites are returned to their pre-activity state. The member will note from the dates that those were initiatives of the previous government of which I was a part.

The dormant sites are classified into four types: type A sites that became dormant by December 31, 2018; type B sites that became dormant between January 1, 2019, and December 31, 2023; type C sites that became dormant after January 21, 2024; and priority sites identified by the B.C. Oil and Gas Commission as a priority — for example, to address environmental or Indigenous concerns.

[6:00 p.m.]

The Dormancy and Shutdown Regulation, which im­poses decommissioning, assessment and restoration time lines for each type of dormant site; the submission of an annual workplan and report by permit holders; and re­sponsibilities to notify an interested person such as land­owners, local Indigenous nations, municipalities and regional districts, regarding the permit holder’s workplan and intention to begin work.

The member asked a question about the performance of permit holders in meeting those deadlines. Although the work is being monitored in the way that’s described as I just said, the first deadline is at the end of this year, December 31, 2021. Obviously, there will be an assessment of who has met the deadline and who has not.

S. Furstenau: As the minister points out, yes, I do recall the pieces of legislation that came in, addressing what was agreed upon at the time as a significant issue with dormant wells and also orphan wells and that the legislation was meant to ensure that permit holders — companies that extracted oil, gas and revenues from these wells — also were upholding the responsibility of ensuring that these wells were decommissioned and restored on a timeline.

What’s a little concerning now is that as we approach — as the minister points out — the first deadline, end of 2021, we have a clause in this bill that’s going to provide the Oil and Gas Commission with the ability to extend those timelines to have this flexibility. Is that because there is an expectation of companies not meeting this deadline? How many are expected not to meet this deadline?

Hon. B. Ralston: As I mentioned earlier, the deficiency in the legislation, not giving the legislative support to create this particular regulation, was noticed some time ago. In fact, I’m told it was noticed in 2019. The steps to create the amendment — get on the list internally, go through the appropriate procedures to be able to bring this to the House — is a protracted process.

There was no grand design, if the member is suggesting this. I’m not sure she is. There was no design to delay it that long. That’s the time that it took to get through the process, so it’s completely unrelated to the deadline of December 31, 2021.

[6:05 p.m.]

The companies are required to file, as I said, an annual plan of the work that they’ve done and the work that they plan to do in this area. It’s expected that the vast majority will comply with the regulation because of that reporting along the way. The observation of the Oil and Gas Commission is that the existence of this regulation has definitely accelerated work done by the companies to comply with the dormancy regulation.

S. Furstenau: In terms of these exemptions for the requirements of the Dormancy and Shutdown Regulation, would a company apply for these exemptions? How would the Oil and Gas Commission make a decision, and would these determinations be made public?

Hon. B. Ralston: I’m advised a permit holder…. The process that’s envisaged is that the permit holder would request an extension with the commission. The commission would review that. They would develop guidance around the criteria for such an exemption, and then the decision would be posted on their website. Those criteria would be posted on the website.

The commission also intends to post exemption deci­sions on its website and would also look at the compliance history of an applicant prior to rendering a decision.

S. Furstenau: In the news release, it implies that this would create…. There would be a limited authority to create exemptions based on criteria that are not part of the proposed or existing legislation. Can the minister explain a bit more about what the criteria would be and why they aren’t listed?

Hon. B. Ralston: The question was addressed to how the regulation would be developed and what would be included in the regulation. That would be part of the consultation process to develop the regulation. There would be consultation with industry, with Indigenous First Nations and with others in the general public who might wish to give their views on that. And then the regulation, at that point, would be written, taking into consideration all of those views, and then be posted publicly.

[6:10 p.m.]

S. Furstenau: Currently when a company is granted a permit to drill, what kind of deposit or payment up front does that company have to provide to ensure the cleanup of that well after the drilling is finished?

Hon. B. Ralston: The company is required to pay security before the application would be adjudicated. That security would depend upon the liability profile of the company. Section 30 of the Oil and Gas Activities Act is entitled “Required security.” That’s the section that is the reference.

The Oil and Gas Commission reassesses the security amount monthly, so if the risk profile or the liability profile of the company were to change, the security that’s required would be reconsidered.

S. Furstenau: Would the security amount typically be enough to cover the decommissioning of the well?

Hon. B. Ralston: The amount of the security really depends on the profile of the company. For some companies, where their liability profile was not favourable, it might be as much as 100 percent. For companies with substantial assets and a strong reputation for meeting their obligations, it might be very different.

It really does depend on the individual company. It’s an assessment of the liability profile of the individual appli­cant.

S. Furstenau: Given the number of dormant wells that have not been decommissioned in a timely manner and the number of orphaned wells in British Columbia, does the minister consider the oversight and regulation to have been sufficient to this time?

[6:15 p.m.]

Hon. B. Ralston: Perhaps I can divide my answer into comments about dormant wells and then orphan wells.

The principle of the dormant well provisions is that the companies are 100 percent responsible to meet their financial obligations to clean up the site and remediate it back to the state that is acceptable to the Oil and Gas Commission.

The orphan well levy was instituted in 2018. There was a previous orphan well fund, but the orphan well levy in 2018 now raises $15 million a year from the industry. That’s used to pay for remediation. An orphan well, of course, is a well where there is no longer any legal tie to an existing company or an operating company, and the liability for the orphan well has fallen to the government to pay for the cleanup.

The way in which that’s done is through, beginning in 2018, the orphan well levy, which is a levy on all partici­pants in the industry. It raises $15 million a year.

S. Furstenau: Not sure that answered my question about whether the minister thinks that the oversight and regulation is sufficient.

His comments about the dormancy…. This is something that has been raised to us by experts. The messaging on this proposed amendment has focused on this being about creating flexibility of timing. The concern is if there are no limits on how long an exemption can prolong cleanup, would this mean that dormant sites could sit in perpetuity and, if this were the case, the implication being that industry could lock up a resource without producing the resource but keep the rights to produce it.

The system for development of oil and gas has been based on this principle that you lose your right to produce the resource if you don’t actively pursue production, but this legislation seems to be proposing that it would allow rights holders to get the benefit of not having to actively produce or decommission these wells.

They can hold on to their permits without risking that the permit will get cancelled for lack of production or for not decommissioning the well. It puts it into a state of uncertainty. Later, if a moratorium is put in place, could these wells either be grandfathered or could the companies sue for compensation?

The implication — this was, again, raised by stakeholders — is that government could be foregoing royalties and potentially liable for the devaluing of the right to produce if we ultimately do what climate scientists are indicating we need to do, which is leave oil and gas in the ground.

[6:20 p.m.]

I’d be interested in the minister’s assessment of this risk that’s been highlighted to us, particularly given the regulations would be created by the Oil and Gas Commission after this legislation is passed, we don’t get to have input or even the ability to know how long this flexibility might be. Is it an extra few weeks? Is it an extra few months? Is it an extra few years? The implications of these different timelines are significant. I’m wondering what the minister’s thoughts on those concerns are.

Hon. B. Ralston: The regulation is intended to focus and create specific requirements for an individual site. It would give the discretion to the commission — in relatively rare circumstances as envisaged, the opportunity or the legislative authority — to require that the regulation not be completed within a specified time. But it would enable the commission to require that it be completed in yet another period with a definite end point.

It’s always envisaged that there will be a requirement to restore in the way that the legislation requires. The exemption will never exempt the permit holder from the requirement to restore. It simply may adjust the time period in which that requirement is required to be fulfilled.

S. Furstenau: Are there any kinds of parameters or guardrails on how much time that could be?

Hon. B. Ralston: No, there would be no specific language in the regulation, at least as it’s contemplated, that would do what the member has suggested. But certainly, administrative practice and the scope that it’s envisaged to be would never see it extend indefinitely.

S. Furstenau: Could the minister provide some sense of, in terms of current practice, how long a well takes to be decommissioned and restored?

[6:25 p.m.]

Hon. B. Ralston: There is a series of steps in remediating a well. The first one is relatively quick in the sense that it would be the work done inside the well hole itself by taking out the concrete casing and removing the machinery on top of the well. That’s done relatively quickly.

Then there would be an assessment for contamination. In some cases, there may be no contamination. If there is contamination, then there would be a process to remediate the well and the site for contamination. Once that is completed, then the next step is to revegetate. The process is the planting, and then, of course, given it’s northeastern British Columbia, typically it takes, usually, two years. You would do the planting, and then you would have to return to see that, in fact, you’d been successful in revegetating.

Those are the steps. That’s a rough sense of the timeline, but it is very site-specific. I hope that gives the member a sense of the timeline.

S. Furstenau: Can the minister provide some examples of what kind of technical issues would inhibit or delay this process that he just described?

Hon. B. Ralston: I’ve given these examples before, but I think I’ll repeat them, because we’re in a different context here. There might well be sites where well integrity issues such as surface casing vent flows prevent a permit holder from achieving their decommissioning targets — in other words, where there are technical complications that make it difficult to achieve the target within the time allocated.

Sometimes remediation takes longer than anticipated. I gave the example of where there’s contamination. A permit holder could be working as quickly as possible yet need more time. This administrative discretion that would be the result of this amendment in the regulation that would be promulgated, attached to it, would give permit holders the time necessary to complete the work safely and completely. In that process, conditions would be imposed upon the permit holder that would require them to report to the commission on their progress of the site, if they were given an extension.

[6:30 p.m.]

S. Furstenau: In the case of an exemption being given — this goes back to the engagement and consultation conversation we were having earlier — would the expectation be that the Oil and Gas Commission would engage and consult with a nation on whose territories that exemption is being given?

Hon. B. Ralston: Yes. There would be consultation with an Indigenous nation if an extension were applied for. If it were on private land, then the private land holder would be consulted with, as well.

S. Furstenau: Would that consultation be the same as the process we heard about here, which is a letter being sent and a time frame being provided for a response?

Hon. B. Ralston: Yes. The process would follow the provincial consultation process. It would be initiated by a letter inviting engagement and then following up, based on — in the case of a nation — what they wish to do, whether they wish to meet. The expectation in this kind of a process would be that there would be very high engagement, just given the nature of the process — the extension being granted and the work being done.

S. Furstenau: Theoretically, if this engagement were to take place and the Oil and Gas Commission were proposing a one-year extension to fulfil the requirements under these regulations, and a First Nation were to say that’s unacceptable, particularly, as the minister pointed out, if there has been an assessment for contamination — we know that there are significant issues around this — what would the process be to ensure that the engagement and the consultation with the First Nation would actually result in an outcome that would be agreed on?

[6:35 p.m.]

Hon. B. Ralston: We are speaking hypothetically in the case of a proposed extension application, but that is the process that’s contemplated — that, if views were received, it would be up to the decision-maker to make a decision about whether to grant the extension as it was submitted or to take into account the views of those expressing a different view and fashion a decision that reflected those views. That would be open to the decision-maker.

S. Furstenau: I’d like to ask the minister about the auth­ority under section 106(3). According to my understanding — I’d like to have this confirmed — this authority allows for a board regulation to “exempt” specific people. That’s the term that is used. Is that correct?

Hon. B. Ralston: The reference is to “a person.” These exemptions are applied for on a site-by-site basis. The person that’s referred to here is the permit holder. That may be a corporate person, most likely, or an individual person, but if the application is specific to a site, then any exemption that were to be granted would be granted only for that site.

S. Furstenau: Just for clarification, it exempts a person. But if that person is a permit holder, can that also be a business, a corporation or a company?

Hon. B. Ralston: Yes.

S. Furstenau: In this allowing for a person to not meet the requirements that every other operator has had to meet under the general regulation, is the minister concerned about this creating a sense that there isn’t administrative fairness?

Hon. B. Ralston: The circumstances under which an exemption might be granted would require the following steps. An application. A consultation with affected parties about the impact that that application might have upon the landowner — or the First Nation, in this case. Then the commission would adjudicate that according to the policy that’s established concerning this particular regulation. The typical rules of administrative law, of administrative fairness, would apply. So I don’t share the apprehension that the member has expressed.

[6:40 p.m.]

S. Furstenau: I think that there are many apprehensions we don’t share, actually, but that’s just me. The minister has made me lose my train of thought here. I’ll jump to the next.

When introducing these amendments, the minister said that they would “increase the overall rate of restoration” of well sites. I guess I’m hoping that the minister can explain what feels like a bit of a contradiction: providing exemptions for meeting timelines to restore well sites. How does this increase the overall rate of restoration?

Hon. B. Ralston: What I think is one of the examples that is envisaged is where a larger company has a number of wells where there’s a dormancy requirement or restoration requirement. Some exercise of administrative discretion would enable them to group the work together and therefore do more and do it more effectively and perhaps do it earlier if the discretion was permitted them to do the work as a group of wells, as opposed to individual wells on different timetables. That would be perhaps less efficient and make it harder for the company to plan the dormancy restoration work.

S. Furstenau: I remember the question I was going to ask last time. When the minister spoke about the process for determining when this exemption would be applied, when a decision is made, would the decision and the reasons for decision be made publicly available?

Hon. B. Ralston: Yes. The decision would be published on the commission website.

S. Furstenau: So the decision about the extension as well as the factors that led to that decision?

[6:45 p.m.]

Hon. B. Ralston: Yes. I’m advised that there will be the decision itself, the reasons for the decision and the conditions that have been imposed upon the permit holder to comply with the decision.

S. Furstenau: We talked about this a little earlier. The Dormancy and Shutdown Regulation did not come into force until 2019. I thank the minister for the timeline he provided earlier. The deadline for decommissioning the sites is the end of this year — the first deadline. If a person or a company does not meet this deadline, there can be an administrative penalty applied by the Oil and Gas Commission at their discretion. Is that correct?

Hon. B. Ralston: Administrative penalties would be assessed. The possible penalties range from $50,000 to $500,000.

S. Furstenau: But that is at the discretion of the commission? There is no set penalty determined?

Hon. B. Ralston: Yes. It’s at the discretion of the commission.

S. Furstenau: And the process for the Oil and Gas Commission to determine if a permit holder has gone against these regulations, and then the process to determine what the fine should be?

Hon. B. Ralston: The party against whom it’s proposed to make an assessment would have the opportunity to be heard. That may be in writing, or that may be an oral hearing.

S. Furstenau: I appreciate the minister’s and staff’s efforts to answer these many questions. The minister spoke of apprehension, and indeed I do feel a great deal of apprehension.

I think it’s interesting, on a day that a piece of legislation was introduced in this House around forestry practices, that the Minister of Forests, Lands and Natural Resources indicated that the intention of that legislation was to put government back into the regulatory seat, so to speak, of forestry practices here. In this case, giving discretionary powers to the Oil and Gas Commission to determine whe­ther or not a company has to meet their timelines for dormant wells and decommissioning and restoration, and that those criteria for decision-making are not included in any of this. That’s to be made later under regulation.

This is of concern to me. I, for that reason, cannot support this clause.

[6:50 p.m. - 6:55 p.m.]

The Chair: Members, thank you for your patience while we did the roll call. We are voting on clause 32 of Bill 21, Miscellaneous Statutes Amendment Act (No. 2), 2021.

Clause 32 approved on the following division:

YEAS — 73
Alexis	Anderson	Ashton
Babchuk	Bailey	Bains
Banman	Beare	Begg
Bernier	Bond	Brar
Cadieux	Chandra Herbert	Chant
Chen	Chow	Clovechok
Conroy	Coulter	Davies
de Jong	Dean	D’Eith
Dix	Doerkson	Donnelly
Dykeman	Eby	Elmore
Farnworth	Glumac	Greene
Halford	Heyman	Kahlon
Kang	Kyllo	Leonard
Ma	Malcolmson	Mark
Mercier	Milobar	Morris
Oakes	Osborne	Paddon
Paton	Popham	Ralston
Rice	Robinson	Ross
Routledge	Routley	Russell
Rustad	Sandhu	Sharma
Shypitka	Simons	A. Singh
Starchuk	Stewart	Stone
Sturdy	Tegart	Walker
Wat	Whiteside	Wilkinson
	Yao
NAYS — 2
Furstenau		Olsen

Hon. B. Ralston: I move the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 7 p.m.

The House resumed; Mr. Speaker in the chair.

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

Question of Privilege

(continued)

Hon. M. Farnworth: I rise to make a brief statement in response to the question of privilege made earlier.

I reviewed the statement by the hon. member, and I ap­preciate his statement. Unfortunately, I would have to say that it is not a question of privilege. In fact, I would make this point: that if the argument that it was privileged were accepted, what it would have the effect of doing is subordinating the Crown prerogative to bring forward legislation to this House, on the advice of the executive council, to a standing committee.

The standing committee is subordinate to this House. Therefore, I would ask that you find that it is not a question of privilege.

P. Milobar: I appreciate this time to speak, as well, to the matter around privilege.

I, too, reviewed the comments. The comments seem to be based on section 80 of the act. When you actually review the act…. I’ll read section 80 out. It’s very short. It says:

“(1) At least once every 6 years, a special committee of the Legislative Assembly must begin a comprehensive review of this Act and must submit a report respecting this Act to the Legislative Assembly within one year after the date of the appointment of the special committee.

“(2) A report submitted under subsection (1) may include any recommended amendments to this Act or any other Act.”

This is the important part:

“(3) For the purposes of subsection (1), the first 6 year period begins on October 4, 1997.”

Why that is important is that every six years from 1997 gets you to 2003, 2009, 2015 and 2021 — in fact, October of 2021, when the subcommittee is supposed to do the work of reviewing the FOI Act and making sure that that report then comes forward to this House.

In fact, the privilege of the act and the committee very directly are being impacted by being circumvented in this case. I would suggest that, indeed, privilege has been breached in this case. At a minimum, it definitely shows a level of contempt of the process around whether or not bills should come forward before they go through committee or not.

Mr. Speaker: The Chair appreciates the comments from both House Leaders. They will be considered.

When the Chair brings back its decision, the ruling, we’ll let you know, hopefully soon.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow morning.

The House adjourned at 7:04 p.m.