Orders of the Day

Hon. M. Farnworth: I call continued committee stage debate on Bill 26, Municipal Affairs Statutes Amendment Act.

Committee of the Whole House

BILL 26 — MUNICIPAL AFFAIRS
STATUTES AMENDMENT ACT (No. 2), 2021

(continued)

The House in Committee of the Whole on Bill 26; R. Leonard in the chair.

The committee met at 2:42 p.m.

The Chair: The committee will go into recess for five minutes.

The committee recessed from 2:43 p.m. to 2:48 p.m.

[R. Leonard in the chair.]

On clause 26 (continued).

D. Ashton: Yesterday we finished up with the first question of public hearings. My second question is: what is the intended effect of this change that is taking place?

[2:50 p.m.]

Hon. J. Osborne: The ultimate outcome that we are intending here is to speed up the development approvals process for local governments, especially to get British Columbians into more homes more quickly. By repealing a local government’s authority to waive the requirement to hold a public hearing on a proposed zoning bylaw when it is consistent with the official community plan, it effectively removes a process step. In other words, a local government would need to opt in to a public hearing rather than to have to opt out of having a public hearing.

D. Ashton: Are there any public consultations that are public hearings while official community plans are being updated, specifically in this circumstance?

Hon. J. Osborne: Yes, that is indeed the case. There is public consultation in the official community plan approval process. That is true for all local governments, with the exception of the city of Vancouver, to which these amendments do not apply, in which case public consultation takes place in the zoning or rezoning stage.

D. Ashton: Would this section enable approval of individual projects if they were consistent with the OCP?

Hon. J. Osborne: Yes. The approval process would remain just the same for any individual project, with the exception that if the rezoning application is consistent with the official community plan, a public hearing would not need to be held.

D. Ashton: I need to talk locally for a minute. Zoning allows multifamily homes and multifamily residency. A process has taken place where this was developed in the OCP. The government, through B.C. Housing….

It’s not a loaded question. It’s just a question that I would like an answer for, and I know that the citizens of Penticton are going to be asking this when this new portion of the law comes in.

So multifamily residential is approved. And supportive housing, which we all need in our communities…. We all know that. Would that qualify for not having to have a public hearing? You have multifamily homes, multifamily residential, multifamily supportive housing. Would that qualify under the auspices of the current government, and specifically the ministry, for not having a public hearing?

[2:55 p.m.]

Hon. J. Osborne: Thank you for the clarity in the question there. In the particular case being described, if multifamily housing is consistent with the OCP, then yes, the local government could go through its approvals process without a public hearing. However, should they choose to do that — to not have a public hearing — they are required to provide public notice to the community, prior to first reading, so that the community is aware of what is proposed to take place. Even if it is consistent with the OCP, they will need to do that.

I would note that there are several — in fact, many — local governments that do undertake pre-approval consultation processes. So again, prior to a rezoning appli­cation coming to the council table or the regional district board table, they may work with the applicant or the developer to have those consultation processes. I would also note that local governments can still opt in to having a public hearing.

What is key to these amendments is that the decision lies with the local government. They know their communities best. They will know what particular applications they may like to still hold a public hearing on because it is, perhaps, contentious or it is large in nature, and they feel that it’s most appropriate to have the public hearing.

Then finally, I do want to note that in the development and approval of an OCP, of course, community consultation must take place, and a public hearing is held on the official community plan itself. The community can remain engaged and aware and still have the input into decision-making processes that are held by their local councils or boards.

D. Ashton: Who is responsible for determining if a bylaw is consistent within the OCP, as described in paragraph (2)(a)?

Hon. J. Osborne: Publicly elected bodies are best placed to consider the many objectives and the policies that are set out in their official community plan and to decide whether a particular zoning bylaw is consistent with the OCP. I would note that the amendment is similar to the existing authority to waive public hearings, which means that local governments already have experience in determining whether an amendment is consistent with their OCP.

Over the years, there are decisions that are made by local governments that have already been exposed to judicial review. There have been a number of cases that consider or challenge bylaws on the basis that they’re not consistent with the OCP. So case law indicates that municipal councils and regional boards can determine consistency based on a reasonableness standard. That means, in other words, that local governments have a fair amount of discretion in determining whether or not a zoning bylaw is consistent with their OCP.

A judicial review remedy would still be available after these amendments as proposed, if passed — even if a bylaw is passed without a hearing — on the basis that a hearing was actually required.

D. Ashton: Thank you to the minister. What would happen if there were a disagreement about the validity of this section while it was being applied? Recourse is a better tack.

Hon. J. Osborne: A bylaw stands until it is challenged. In this case, a judicial review remedy will still be available, even if these amendments are passed.

D. Ashton: Does the minister know how many local governments are expected to avail themselves of this section by bypassing public hearings? I’m just curious. In the discussions, in the consultation that took place…. Posi­tive, negative, leaning to which direction? If a number was available, it would be greatly appreciated.

[3:00 p.m.]

Hon. J. Osborne: First, just a reminder that these proposed amendments are a direct response to calls from UBCM and the other stakeholders, including local governments, that participated in the development approvals process review.

Second, these amendments apply to all local governments across British Columbia with the exception of Vancouver. So that is local governments that cover 88 percent of the province’s population.

The initial feedback, the early feedback, that we’ve had from local governments is that this is being favourably received — the proposed changes. It’s positive, and they’ve indicated a willingness to try them out. That being said, we know that the impact of these amendments is going to vary from community to community. There will be some early adopters who will try it first, and there will be many others, I think, who will wait to see how it goes.

It’s possible, also, that a local government could choose to apply this to a certain category of bylaw amendments — for example, carriage houses or secondary suites — as a way of trying it out.

In the end, again, we hope that this is picked up and used by local governments as a way of building homes more quickly and more homes for British Columbians.

D. Ashton: Thank you to the minister for that answer and bringing up housing. It fits right in. Does the minister, through her ministry and/or local government that she’s talked to, have any projections on how this will impact housing supply?

[3:05 p.m.]

Hon. J. Osborne: Thank you, again, for the question on how this will impact housing supply in British Columbia and what kind of increase in housing supply we might be able to see.

While I can’t give you a precise answer or predict the future, I do know that we will be closely monitoring the use of this tool and receiving feedback from local governments and from the development sector as to how it is going.

We know there are hundreds of public hearings that are taking place across British Columbia and, again, that local governments have asked for a tool to help speed up their approvals processes. Even a small savings in time of not needing to advertise a public hearing, hold a public hearing — which in some instances can take a matter of not only hours but, in fact, even days — equates to a savings in money, which will reduce the price or cost of housing and, again, speed up the delivery of housing.

I do want to note a comment that was provided to us by Jill Atkey, the CEO of the B.C. Non-Profit Housing Association. In speaking about the amendments that are proposed in this bill, not only on the public hearings but also on the development variance permit delegation of authority, she noted that the B.C. Non-Profit Housing Association encourages all municipalities to use their new powers and to consider seriously whether public hearings are necessary for affordable housing projects that are consistent with community plans. These actions alone have the potential to save as much as one year in the development process.

Again, with the intention here of speeding up and streamlining the development approvals processes, we hope to see a significant increase in housing and get British Columbians into those homes faster.

D. Ashton: The Vancouver Charter — does it have a parallel process, or are they looking at a process that would expedite the process of developing homes in the specific area that the charter encompasses in the Lower Mainland?

Hon. J. Osborne: The city of Vancouver is not included in these amendments, as the member notes. So what changes are intended in the city of Vancouver?

First of all, I want to be clear that the province is partnering with all local governments, including the city of Vancouver, to get homes built faster for people in their communities. This bill is an important step to give local governments more tools to streamline their development approvals processes. But the Vancouver Charter is different and distinct from the Community Charter, of course. It sets out a planning and land use framework that’s different than that used under the Local Government Act.

For example, Vancouver already has broader abilities to delegate to staff than other local governments do. The Vancouver Charter doesn’t require public hearings for official development plans, which is their equivalency of an official community plan in another local government. As a result, this means that public hearings take place — they’re required — at the rezoning stage. So this might be the only opportunity, in that case, for the public to provide input into a proposed land use change.

The city and the province are working closely together to support their plans to speed up their development approvals processes. I would note they have received a $500,000 grant through UBCM, but from the province, to support and streamline their development approvals processes. They are developing an interactive digital development application tool.

That’s a project that is aimed to accelerate efforts to modernize their permitting and licensing services and increase the efficiency of the development approvals process, which would enable their staff to have more timely and accurate, predictable and consistent experiences for everybody who participates in the planning approvals processes in Vancouver.

[3:10 p.m.]

Beyond just that, though, the provincial staff, my staff at the Ministry of Municipal Affairs, will continue to work in partnership with the city of Vancouver to examine other ways that we will be able to support them, and there will be more to come.

D. Ashton: Thank you. I really appreciate it.

I’m finished with section 26, and no further questions until section 30.

Clauses 26 to 29 inclusive approved.

On clause 30.

D. Ashton: If a public hearing is not held, are there any other means that a local government may use to inform the public or to get input — i.e., feedback from the public?

Hon. J. Osborne: Yes, there are a number of ways that the public will still have the opportunity to comment on a proposed zoning amendment or a zoning bylaw. If a public hearing does not take place, local government will be required to give public notice before first reading takes place. This effectively backs up the ability for the public to be aware of a rezoning application and to make comment.

The regular avenues for public comment will still be open, of course, as they are on any proposed local government decision. That might include writing letters to council, emailing members of council, talking to them. But as I mentioned before, local governments are more and more undertaking pre-approval consultation processes — working with a developer or a proposed homebuilder or property developer to consult the community.

We will be providing guidance and best practices to local governments — provided that these amendments pass, this bill passes — so that they can continue to do their good work in consulting and listening to members of their communities.

D. Ashton: Thanks to the minister, and I have no further questions until section 36.

Clauses 30 to 35 inclusive approved.

On clause 36.

D. Ashton: What impact will this legislation have on variances?

Hon. J. Osborne: Thank you for the question. On development variance permits and the new tool that would enable local governments to delegate minor development variance permits to their staff for decisions….

[3:15 p.m.]

Again, this is in response to recommendations that came from the development approvals process review and the request of local governments and those in the development community and other stakeholders involved in the provision of housing and advocacy for housing to enable local governments to streamline and speed up their approvals processes.

Specifically, what this will do is enable local governments to delegate, by bylaw, the power to issue development variance permits for minor variances in certain circumstances. These are specified in the legislation. They include zoning bylaws that respect siting and size and dimensions of building structures and permitted uses; off-street parking and loading-space requirements; the regulation of signs; screening and landscaping to mask or separate uses or preserve, protect, restore and enhance the natural environment; and a provision of the Local Government Act prescribed by regulation of the Lieutenant-Governor-in-Council. So this specifies what must be included in a bylaw.

Again, the local government must pass a bylaw that will describe the minor development variance permits that would be delegated to staff. It would give staff the power to issue those DVPs, I’ll say for short, primarily. What would be included in that bylaw are the criteria that would be used to determine whether the proposed variance is minor and guidelines that the delegates, staff, must consider in deciding whether to issue the development variance permit.

Again, this is a tool that local governments can use to speed up their approvals processes, handing over minor decisions — which do get into the system and create delays — that, as deemed by those who have been engaged in this process, would help speed up that process.

D. Ashton: Does the minister have a view of what is appropriate and minimum, maximum when it comes to the scope of this? Also included in that question: is the minister contemplating any regulations or issuing guide policies to help municipalities come to terms of the upper and lower limits of possibilities?

Hon. J. Osborne: The question around effectively defining what minor variances are…. The proposed legislative amendments already provide limitations on what can be considered minor. I’d note that this does not include things like density or use or subdivisions, but is the list that I read off before around siting, size and dimensions of buildings, off-street parking, regulation of signs — that list.

It is up to the local government to determine, through a bylaw, what they define as a minor variance. That’ll be based on the unique needs of their community. Based on the consultations that we’ve undertaken, examples of potential minor variances might include a reduction in sideyard setback or changing the dimensions to a sign or the height of a fence.

The proposed amendments will require the local government to develop guidelines that will help their staff to issue these minor DVPs. These requirements really provide local governments with flexibility in determining what constitutes a minor variance and then guiding, again, the staff to exercise that power to issue the DVP.

I would note, too, that the council and board oversight always remains that of delegated decisions. Again, this would be done by bylaw, so this would be faced with the public scrutiny and the opportunity for public to have a comment there too.

The member also asked around regulatory-making powers. The amendments do provide a provision to prescribe by regulation. As we monitor how this is implemented and used, should we choose to add a new tool or area of minor development variance permits, then that would be able to be done through regulation.

[3:20 p.m.]

D. Ashton: Madam Chair, I’m fine with clause 36. My next question is on clause 37.

Clause 36 approved.

On clause 37.

D. Ashton: Why is notice not required if a delegate issues a development variance permit — i.e., somebody that has been delegated at a municipal hall? Why is notice not required for that variance permit?

Hon. J. Osborne: The question is around why no obligation to give notice. That is because the local government will already have gone through the exercise of adopting a delegation bylaw that includes the criteria for what is to be considered minor.

Now the powers will be delegated. The authority will be delegated to staff. So if a proponent comes forward to the local government office and makes an application, it’s covered under that bylaw. The public will have an opportunity, of course, to comment on the bylaw if the local government chooses to adopt one, and that’s the best opportunity for them to have their perspectives shared and known then.

D. Ashton: I have no more questions on clauses up to and including 42, but my peer has questions on clause 43.

Clauses 37 to 42 inclusive approved.

On clause 43.

P. Milobar: Hopefully the minister will cut me a little latitude here. I have a few overarching questions around the overall sections of Jumbo. It just probably is easiest to deal with them all in the front end, and then we’ll be done with all of those sections.

I’m just wondering if the minister could provide an overview of which Indigenous nations were consulted about the dissolution of Jumbo and what those consultations looked like with each nation.

Hon. J. Osborne: Five First Nations were identified to be consulted with and as having potential interest in the municipality’s dissolution. Referral letters were sent to the Neskonlith Indian Band, the Adams Lake Indian Band, the Little Shuswap Lake Indian Band, the Shuswap Indian Band and the Ktunaxa Nation Council society.

No concerns regarding the dissolution were received. Moreover, as I think the member knows, the Ktunaxa Nation does support the disincorporation of the municipality.

[3:25 p.m.]

In fact, the province, through the Ministry of Indigenous Relations and Reconciliation and FLNRORD — Forests, Lands, Natural Resource Operations and Rural Development — and the Ktunaxa Nation and the Shuswap Indian Band are working together to create an Indigenous-protected and conserved area in the place of question here.

P. Milobar: That’s around the dissolution, and then my next question was going to be, actually, if all of those same bands were consulted around the Indigenous-protected and conserved area.

Can I just confirm with the minister again. I believe she just said that the Shuswap Indian Band was consulted by government on the creation of that protected and conserved area.

Hon. J. Osborne: Yes. The member is correct.

P. Milobar: In the interest of time, I’ll just jump right into it, I guess, because that seems to create a bit of a problem with the correspondence that I have from the Shuswap Indian Band and their Chief.

I’ll just read from it: “Shuswap Band was not consulted in any way on the Jumbo Glacier Resort and was left out completely on the creation of the Qat’muk Indigenous-protected and conserved area. We only heard the news of the funding given to the Ktunaxa from the radio report. We were very disappointed, hurt and felt disrespected that no one from government took the time to bring us into the conversation before any funding was given out. We heard that even Oberti, the developer, was paid out. Shuswap Band has lost a lot due to exclusion of recognition of our rights and title.”

Can the minister please explain how the minister and government feels that there was actual consultation, and a Chief, very clearly, as of October 29, says the exact opposite?

Hon. J. Osborne: Thank you for making me aware of the letter, which I was not aware of before.

Because this legislation, these amendments, pertain to the dissolution of the municipality, the work that’s being done on the establishment of an Indigenous-protected and conserved area is being done by our colleagues in FLNRO. I’ll make the commitment to follow up, and follow up with the member afterwards.

P. Milobar: Well, the problem is that the way the letter is framed. It also says they were not consulted on the Jumbo Glacier Resort. I think we all should have an understanding, at this point….

[N. Letnick in the chair.]

Certainly, I know the minister, as a former mayor, would have had to send off referral letters. How referral letters, at a municipal government level….

[3:30 p.m.]

It’s takes a lot of follow-up to have it qualify as meaningful and attempted consultation, let alone it actually being qualified as consultation. I don’t think anyone is arguing about the need to take care of and dissolve the incorporation.

This has been a long-standing project that’s been supported by all parties in this House, actually, back from its inception, back in ’91, of an idea. It has had favourable commentary from then Premier Mike Harcourt, in ’91; then Minister of Economic Development Glen Clark; Minister Moe Sihota, Environment, Lands and Parks Minister, back in ’91, speaking favourably of Jumbo. It has had support for the economic development potential, and obviously that potential was not realized.

I think the underlying sentiment and feeling from the Shuswap Indian Band is that they were left out of the governmental side of the government-to-government discussions because they were actually quite supportive of the project. They saw the potential around economic development and economic good that could come for their band if the project was successful and was able to proceed.

I don’t think there is an argument about the dissolution. The concern that we’ve heard from the Shuswap Indian Band is that the reference back was actually from another nation after the park had already been in the stages of development, with funding attached to it not from government — not from this minister or from FLNRORD or from Indigenous Relations and Reconciliation.

So I guess the question really is…. The dissolution is happening. It’s supported. Is there any work plan…? Are there any steps being taken by government to ensure that the Shuswap Indian Band is properly consulted on a government-to-government level, from the provincial government to the Shuswap Indian Band — not leaving it up to First Nations to consult with each other, but actually making sure that they have been meaningfully engaged through this process, as this legislation is already sitting in front of the House?

[3:35 p.m.]

Hon. J. Osborne: On the subject, again, of consultation with the Shuswap Indian Band on the dissolution of the municipality, the amendments that are part of the proposed legislation before us today, I can confirm that on July 15 a referral letter was sent to the Shuswap Indian Band, that two weeks later ministry staff followed up to confirm receipt of the referral letter and that no concerns were received back, no concerns were identified and received by the ministry.

With respect to consultation on the establishment of the IPCA, once again, I’d need to refer to my colleagues in the Ministry of Forests, Lands, Natural Resource Operations and Rural Development and get back to the member after today.

P. Milobar: I thought I was done with questions, but this begs, I think, a bit of a follow-up then. So July 15 of 2021 with a follow-up touch-base on July 29, and here we are in October. That’s — what? — two or three months later. Was it of this year that the letters went out, or was it in 2020?

Hon. J. Osborne: For clarity, that is July 2020.

D. Ashton: My next question would be on clause 48. I’m fine until then.

Clauses 43 to 47 inclusive approved.

On clause 48.

D. Ashton: The University Endowment Land Act. The minister has new powers. When would the minister use their new abilities in regards to the University Endowment Land Act?

[3:40 p.m.]

Hon. J. Osborne: As the member knows, I think, the UEL, the University Endowment Lands, are not a local government. It is different and separate from local governments across British Columbia. Effectively, the province is the local government in the case of the University Endowment Lands.

The purpose of this particular clause is to provide a flexible option for public notice in the UEL in a way that is similar to the Community Charter, the new public notice framework that would be provided through the amendments proposed elsewhere in this legislation. Essentially, this ensures that the minister can provide effective public notice of the minister’s intention to adopt a bylaw.

Further, just to note that the approach to provide at least two means of publication parallels, again, the changes that are being provided to other local governments. But because of that unique nature of the UEL and the fact that the province administrates the UEL, the requirements or the principles for what the minister must consider when developing a new public notice bylaw are more explicitly stated at the outset, as compared to the local governments, who would have the ability to develop their own public notice bylaw and go through that process.

D. Ashton: I’m fine until clause 49.

Clause 48 approved.

On clause 49.

D. Ashton: Are the changes in this section identical to the changes in the Community Charter regarding notice period?

Hon. J. Osborne: The outcome is identical. However, because the Vancouver Charter is a little bit older, the wording is a bit different.

D. Ashton: I’m fine until 53.

Clauses 49 to 52 inclusive approved.

On clause 53.

D. Ashton: Are the changes in this section identical to the changes in the Community Charter? This is regarding the code of conduct.

Hon. J. Osborne: Yes, once again the intended outcome is the same, but because the Vancouver Charter is an older piece of legislation, it is drafted a little bit differently.

Clause 53 approved.

On clause 54.

D. Ashton: I have no more questions on any of this.

Before we close this, I would just like to thank the minister very much for the opportunity. I would also like to thank staff in the room. The briefings are greatly appreciated and make a huge difference. To those that aren’t in the room — I think there are some in the back in the Maple Room — please pass along my regards to them.

It’s always been a pleasure to be able to work with you. Coming from local government, like the minister and myself have done in our past, the ministry has been a godsend on more than one occasion. I would like to say wonderful staff and very enjoyable to work with. Thank you very much.

Clauses 54 to 57 inclusive approved.

Schedules 1 and 2 approved.

Title approved.

[3:45 p.m.]

Hon. J. Osborne: I, too, would like to thank the member opposite, the member for Penticton, for the incredibly collaborative relationship we have and the respectful dialogue we’ve had throughout the committee stage of this bill, and to also thank the other member for the questions and, of course, my very capable staff for all the support that they provide, not only to me but to local governments and, indeed, all British Columbians.

With that, I move that the committee rise and report the bill complete without amendment, Bill 26.

Motion approved.

The committee rose at 3:46 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 26 — MUNICIPAL AFFAIRS
STATUTES AMENDMENT ACT (No. 2), 2021

Bill 26, Municipal Affairs Statutes Amendment Act (No. 2), 2021, reported complete without amendment, read a third time and passed.

Hon. S. Malcolmson: I call for debate on Bill 27, Election Amendment Act, committee stage.

Committee of the Whole House

BILL 27 — ELECTION AMENDMENT ACT, 2021

The House in Committee of the Whole on Bill 27; N. Letnick in the chair.

The committee met at 3:49 p.m.

On clause 1.

Hon. D. Eby: Joining me in the chamber this afternoon are Alayna van Leeuwen, senior policy analyst, Ministry of Attorney General, and Tarynn McKenzie, policy analyst, Ministry of Attorney General.

[3:50 p.m.]

M. de Jong: Before we get into the brief discussion on the bill, I thought I would take advantage of the moment to thank the Attorney General’s colleague, the Minister of Energy and Mines, who had sent an invitation to members of the committee and members of the House to attend a reception for a former leader of the Attorney General’s party, the New Democratic Party, Mr. Skelly.

It was good to see Mr. Skelly. He led the opposition and the Attorney General’s party during a fascinating time in the political history of the province. He looks well and spry and, I think, maintains a healthy interest in public affairs in this province. I know the Attorney will extend our thanks and my thanks to his colleague for the kind invitation to share in the celebration of Mr. Skelly’s return to these buildings after so many years.

With respect to clause 1, there has been a bit of a long-standing discussion that transcends this bill — in fact, any particular piece of legislation — about the circumstances in which something will be enunciated specifically in the primary legislation in the bill, in the clause, versus what will be left to regulation and subsequently provide the flexibility that governments frequently like to have. In this case, the choice has been made — to be fair, as it was, I think, in the original legislation — to incorporate a specific amount and then a mechanism by which that amount may change over time.

Can the Attorney provide any guidance to the committee, to the House and to whichever members of the public might be watching or interested around any general rules that might guide both government and drafters — there may be different interests at play sometimes — about when an amount will be specified in the legislation and when it wouldn’t be?

In asking the questions, I’ll offer the observation that I recall, from my days in another post in this assembly, being alerted to the fact that the canons of construction, the conventions around construction — for example, on taxation matters — generally required an amount to be specified, or a percentage or a specific amount. I don’t know if that’s the case in circumstances like this, but I hope the Attorney understands the nature of my question. Is there a set of rules of construction or guidance that assists in determining when an amount is going to be specified and when it might simply be left to a regulation?

Hon. D. Eby: I’m grateful to the staff for some insight on this, which I can share with the member. Under the Election Act in British Columbia…. It’s a unique statute. The regulation-making authority does not reside with the Lieutenant-Governor-in-Council or, in other words, cabinet. It resides with the Chief Electoral Officer. Under the act as it’s currently structured, only the CEO can make regulations.

[3:55 p.m.]

The member is right that, typically, where you have a fine or a fee or a subsidy or an amount of money that might change over time, you would expect to see that in the regulation. But the unique structure of this act is such that if the Legislature wants to be clear about a policy direction in terms of an amount, that needs to be in the statute, because the regulatory authority resides with the Chief Electoral Officer.

For a matter like this or around a limit on donations, the political debate is rightly held here and determined here and under this act, rather than being left to the Chief Electoral Officer.

M. de Jong: That is a helpful reminder. To be clear, then, by virtue of the construct of the Election Act, the authority vests with the Chief Electoral Officer, but that authority is limited insofar as the provisions of section 215.02, as amended by this legislation, limit that authority.

The Chief Electoral Officer does not possess the authority or the jurisdiction to arbitrarily alter either the amount referred to in subsection 2(a) — I think the Attorney would confirm — nor does he or she possess the authority to alter the formula by which future adjustments are made. If the Attorney could confirm that.

Hon. D. Eby: That is correct.

M. de Jong: Sub (3) of clause 1 in the bill, as I understand it, purports to change the dates around…. I guess payout transfers is the appropriate term. Is that a function of just encountering some practical difficulties around the first of the month? There seems to be a two-week period. I’m just curious as what gave rise to the rationale for changing the dates?

Hon. D. Eby: There are two reasons the payment dates, as structured, were set up to be made on January 1 and July 1. The member will immediately recognize that those are typically statutory holidays, which brings one set of challenges that this amendment addresses.

The second is that, in the technical consultations with Elections B.C., staff were advised that calculating the inflation rate for the previous year, as well as the payments that were required on a statutory holiday for payment, was a lot to ask. Simply changing the date to the 15th would enable the time necessary and ease the administrative burden of Elections B.C. in determining the amounts of the payments — which for the first of the year would be based on the CPI — as well as the appropriate amount to each party, depending on the number of votes.

Those are the two reasons for the shift. I guess I don’t have anything else to say. I thought I’d have another great insight there, but I’ll wrap it up there.

[4:00 p.m.]

M. de Jong: With respect to sub (3), I don’t need to pursue that further.

I did neglect, however, my questions that related to sub (2). I suppose the follow-up I should ask…. We’ve established, and the Attorney has helped establish for the committee, that the Chief Electoral Officer is precluded from making alterations to either the amount in sub (a) or the formula for calculating future adjustments. That requires a purposeful amendment by this assembly.

Can the Attorney simply confirm that it is also true, for reasons he’s already alluded to, that the Lieutenant-Governor-in-Council is precluded from altering either the amount referred to in sub (2)(a) or the formula for calculating adjustments in the future?

Hon. D. Eby: Stated in the positive, the only way to change the amounts or the formula is through legislative amendment — through a vote passed by the majority of the legislators in the assembly. Stated in the negative, neither Lieutenant-Governor-in-Council or cabinet or the Chief Electoral Officer on their own or in combination can change the amounts of the formula without a statutory amendment.

Clause 1 approved.

On clause 2.

M. de Jong: I think the Attorney may have heard me refer to this in the brief second reading exchange. The question that I alluded to was this.

The decision has been made and discussed at a different committee, other than this, around continuing the payment of these amounts into the future or eliminating the time-limited nature of them. But there was also a review mechanism contained in the original provisions, and the decision has also been made, from my reading and my understanding, to eliminate a requirement on the part of the special committee to review, in general terms, the process by which these payments are made to political parties, political participants.

Can the Attorney indicate to the committee what the rationale was for completely eliminating that review function, whether it was after two years, three years, five years or, I suppose, ten years? It would be helpful to hear from the Attorney what his and the government’s rationale for that step was.

Hon. D. Eby: The recommendation of the committee was that annual allowances be made permanent. The recommendations also included adjusting them by CPI, which would eliminate the need for future reviews on amounts.

The member will recall that the previous mandate for the review was whether there should be an annual allowance continued to be paid. The answer of the committee was in the affirmative and, in fact, that it should be made permanent.

The second question asked of the special committee was: if an annual allowance to political parties is to be continued, what should the amount be, and what should the number of years of the annual allowance be paid? The answer of the committee was the amounts that are in the statute amendments in front of us and that it be made permanent.

There was no recommendation from the committee around further review. In fact, the opposite — that it be made permanent. I note that this is one of several reforms around our political donation and funding system in the province, whether it’s an issue of donation limits or reimbursements or otherwise. Those changes are part of the legislation now, and any reforms would be through statutory amendment, not through review by committee.

[4:05 p.m.]

M. de Jong: I don’t think I take issue with any of what the Attorney has offered to the committee, except to make this observation that I’d like him to comment upon. The committee received its marching orders, its mandate, to address the two questions that the Attorney has referred to. I don’t think they were asked to include a recommendation around any kind of a review mechanism, and I don’t believe they offered an opinion on that matter. I’m surmising from that that the decision around eliminating any kind of a review mechanism was that of the government’s.

I’m not intending to be argumentative about this. I think the Attorney sort of left the impression that this flows automatically from the recommendation of the committee on the two questions they were asked. I’m not sure it does. I think the legislation could be faithful to the recommendation of the committee but maintain a review function down the road. The decision has been made not to do that, and it seems to me that that was a purposeful decision on the part of government.

Hon. D. Eby: I’ll note that there was some understanding, I think, at least among the individuals who provided feedback to the committee, that this was something that the committee could potentially recommend. The mandate to the committee was quite broad. They were to conduct a review of the annual allowance including, without limiting this, a review of the following — and then the two items that I set out for the member.

The reason why I believe that members of the public, at least, were under the impression that further review could be part of this is that two of the 100 submissions received did, in fact, suggest that there be a further review down the road, and 98 did not.

Ultimately, all of this truly is the decision of government, but the decision of government I would express as our wish to implement the will of the committee as it was articulated in their report, which is that the allowance be made permanent, that the amounts be set at the levels that they recommended, that the formula be set as they recommended. And there was no recommendation from the committee, although the matter was in front of them through members of the public.

M. de Jong: I think the Attorney has made his and the government’s position clear on this. I’ll only offer this observation. The committee, having been silent on the issue and apparently agnostic on the question of whether or not to retain an automatic referral for review, as other pieces of legislation do, particularly those in involving statutory officers….

My submission to the committee and the Attorney is that there would have been some merit in these, dare I say, earlier days of a new regime of maintaining a statutory requirement for at least one further review period, if not more. It would appear the government and the Attorney take a different view of that.

Hon. D. Eby: The matter was in front of the committee. We have the recommendations of the committee. They did not include a review. The commitment of government was to implement the recommendations of the committee.

Clause 2 approved.

The Chair: Shall clause 3 pass? Carried.

On clause 4.

[4:10 p.m.]

M. de Jong: No, no, I’m on clause 3.

The Chair: You’re on clause 3.

M. de Jong: Far too enthusiastic guy for the weighty section, clause 3, before us. Not so fast, Minister.

The Chair: Clause 1 and clause 2 are carried.

On clause 3, Abbotsford West. You have the floor.

On clause 3.

M. de Jong: The provisions are technical in nature. Happily, the explanatory note is helpful, in this case, for drawing a reader’s attention to interpreting them and making the point that the Chief Electoral Officer, when making the adjustment under the formula provided here, is, in the future, permitted to use the consumer price index prepared under the Statistics Act, or published under the statistics Canada act, to determine which consumer price index is applicable for a particular time.

I’m presuming, by the way, that the Statistics Act referred to there is the provincial statute, and the Statistics Act Canada would be the federal statute. If I have that wrong, the Attorney and his staff can correct me. But why the choice, and what, at a practical level, is the difference?

Hon. D. Eby: I’m advised this is a matter of timing. The two different indices are published at different times. I’m also advised that, typically, Elections B.C. uses the Vancouver CPI published by B.C. Stats under the B.C. Statistics Act. The section gives the Chief Electoral Officer the discretion, based on the differential timing, to determine which index the Chief Electoral Officer wishes to use.

M. de Jong: I don’t think this is an issue today, or probably in recent memory, but we are, of course, hearing speculation about inflationary trends.

Has there, historically, been much of a discrepancy between either the provincial or the federal number? That’s not my recollection, but we’ve come through a period of pretty stable inflationary numbers. The staff may be far too young to think back as far as I am, but has there been any time when there has been a signifi­cant or marked discrepancy between either of the indices that the Attorney has referred to?

Hon. D. Eby: I’m advised that the section is based solely on the issue of timing. To the best of staff’s knowl­edge, there is not a significant discrepancy between the two indices.

That does not mean that there will never be or there has not been, but we don’t have the information in front of us in terms of historic rates of inflation between the two separate measurements. We can find that for the member, certainly, if he’s interested. We just don’t have it in the House.

Clauses 3 and 4 approved.

Title approved.

Hon. D. Eby: I move the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 4:14 p.m.

The House resumed; Mr. Speaker in the chair.

[4:15 p.m.]

Report and
Third Reading of Bills

BILL 27 — ELECTION AMENDMENT ACT, 2021

Bill 27, Election Amendment Act, 2021, reported complete without amendment, read a third time and passed.

Hon. L. Popham: I call continued debate on Bill 22, committee stage.

Committee of the Whole House

BILL 22 — FREEDOM OF INFORMATION AND
PROTECTION OF PRIVACY
AMENDMENT ACT, 2021

(continued)

The House in Committee of the Whole on Bill 22; N. Letnick in the chair.

The committee met at 4:19 p.m.

On clause 5 (continued).

M. de Jong: Welcome back to the minister and her team.

[4:20 p.m.]

I’ve been listening to the discussion around clause 5, and I thought I might begin by asking the minister to confirm something that I think is correct, but it influences how I’m reading the act — that is, of the bill before us, Bill 22, section 5 and section 44 need to be considered together because they both pertain to section 75 of the existing act. Specifically, section 5 relates to and refers us to section 75 of the act, as amended later in this bill by section 44. Have I got the chronology right, in terms of how to read this?

Hon. L. Beare: If I understood the question from the member, it was wondering whether clause 5 and clause 44 were related. Yes, because clause 44 repeals and replaces section 75, which we were referring to, and clause 5 relates to that.

M. de Jong: That’s a good start, because that is a precise answer to the precise question that I asked — that we are, in section 5, here considering an amendment that relates directly to section 75, as amended later by section 44 in this bill. Now, I’m hoping that we have similar success in establishing some clarity, which I think has eluded the discussion thus far, as it relates to the issue of fees — as touched upon and relating to section 75 of the act, which is being amended in the way we just described.

In the time I’ve been here, the purpose of this committee is to try and bring some clarity to some of the issues — well, to as many of the issues as we can — that arise in the course of legislation. There has, and I hope the minister…. Well, maybe the minister won’t agree. In one particular area, I am more confused today than I was a week or a week and a half ago.

[4:25 p.m.]

It relates to this issue of fees and the government, via the newly amended section 75 of the act, seeking authority from this committee — and, ultimately, the House — to make some changes. Of course, the committee is interested to know what those changes will be, because it will influence whether or not the committee and the House wish to give the government and the minister that authority. That, of course, lies at the heart of the question around what these fees are going to look like.

I listened to the discussion, and I’ve cross-referenced some of what I’ve heard the minister say in the past. I’ll relate that. My recollection is that the first time the minister had anything to say about this in the public forum, she was quoted in the following way: “This is a modest application fee for non-personal FOI requests, and it’s in line with other jurisdictions. Other jurisdictions’ fees range from $5 to $50. I’m recommending a fee right in the middle of that.”

I’ll start there. Does the minister stand by that statement? Has she made a recommendation?

Hon. L. Beare: The legislation we have before us today enables government to create an application fee. That’s very specifically what this legislation does. As I’ve also said — and the member will know; I’m sure he’s done a lot of looking at this — the fee goes through a separate approval process, and that’s not part of this committee stage and not something I can discuss here.

[4:30 p.m.]

What I will say is that our government is listening to the feedback that we’re hearing from across the province because I think that it is very important to know how people feel and what people feel is appropriate regarding a fee.

M. de Jong: All somewhat interesting, but all not representing a response to the question I asked.

The specific question I asked was in response to a statement the minister chose to make. I didn’t make the statement. The minister chose to make a public statement: “I’m recommending a fee right in the middle of that.”

[R. Leonard in the chair.]

“Other jurisdictions’ fees range from $5 to $50. I’m recommending a fee right in the middle of that.” Has she made that recommendation?

Hon. L. Beare: I stand by my answer I just gave. What this legislation, which we are discussing before us in this House today…. The legislation gives government the ability to create a fee. That is what we have before us.

Any potential fee, as I’ve said, goes through a separate approval process that is not part of this committee stage discussion. But I do think it’s important for everyone to know that we are listening to people, because we think it’s important to hear what people think.

M. de Jong: But hasn’t the minister just made the point for why these are important questions for her to answer? The fact that she and the government have decided to relegate this to a regulation-making authority means this is the only opportunity this body has to pose questions about this very matter.

I hope the minister will think about what she has just said. She has said to the committee and to the House: “We want you to give us the authority to do something that we will no longer be answerable to this body for, but I refuse to tell you or confirm what our intentions are about how to use that power.”

That, with the greatest respect, is ridiculous. Does the minister believe it inappropriate, in tabling legislation and seeking support and approval from this body, to create a new regulatory power? Does she believe it’s inappropriate for the committee to ask her how the government intends to exercise that power?

[4:35 p.m.]

Hon. L. Beare: I do stand by my answer. The legislation we have before us today gives the ability to create a fee. That is the discussion for today — the ability to create the fee. As I’ve said, the fee goes through a separate approval process that isn’t part of this committee stage.

I’m very happy to hear the member’s feedback. The member provided a bunch of feedback back in clause 1. I’m sure the member is going to provide a bunch more feedback over the next couple of hours. I’m very happy to hear that feedback from the member and from the public. I do think it’s important for all of that to be taken into consideration, in the process that is outside of this committee stage, in setting the fee.

M. de Jong: Maybe the minister could inform the committee about what she terms “a separate approval process” for the fee. What does it entail, and is there a role for this committee to play?

[4:40 p.m.]

Hon. L. Beare: The member will be very familiar with this process, with his extensive years on this side of the House and being the Minister of Finance himself at various points. But in cases such as this, once the legislation is passed, the regulations follow. So a regulation cannot officially be set before the legislation is passed and actually gives the power to create that regulation.

M. de Jong: What I was hoping the minister would confirm for the committee and people watching is the mechanism by which that regulation is set.

She’s right. I have some fleeting familiarity with this. It goes to cabinet. It is approved by the executive council, of which the minister is a member. Unless something has changed dramatically, there is no role for anyone other than members of the executive council to participate in that discussion and the approval of that regulation.

I suppose I should pose the question. Is there a new avenue whereby members of the legislative branch of government are now invited in to discuss and debate with the cabinet the nature of a regulation, in this case setting the amount of a fee? That would be news to me.

[4:45 p.m.]

Hon. L. Beare: So I think it’s really important for the member and for anyone that is watching today during this debate that…. Our government is listening. We heard the concerns that the member shared in clause 1 and in some of the letters. We’re hearing them. We’re reading them as well. We’re hearing the concerns directly from British Columbians and what their feedback is, what their input is.

Our government takes that into account. This is important. This is important as part of the decision-making process. So I think it’s important for everyone to know that in making those regulations moving forward, that we are listening and that we will continue to listen to British Columbians.

M. de Jong: Well, again, with the greatest respect, what people watching this exchange regrettably are learning is the following. A minister, on behalf of the government, the executive council, is saying to this committee and to this House: “We want a new power.” In this case, a power to charge a new set of fees.

Now, people have views on that. But even before we get to that, the minister is saying: “We want you to grant us this power, but I refuse to engage in a discussion about how we might use that power.” That’s ridiculous, and that’s a kind term. That’s anti-democratic.

These Journals that are on the wall here, books of Hansard, are full of exchanges that have taken place in this chamber where governments of the day have sought regulatory powers. In example after example, if the minister didn’t table a draft regulation — and sometimes they did that — they would embark on a conversation with members of the committee about how that regulatory power would be…. The government was considering using that power.

This minister is saying to this committee: “I want the power to charge a new fee, and I refuse to share any information with this committee about how I and the government are considering using that power.” That’s wrong. Everyone understands that the regulation isn’t the regulation until it’s been signed by the Lieutenant-Governor. That’s not the point.

The point is, in asking for the new power that these sections represent and would bestow upon the executive council, it is entirely legitimate — nay, I would say it is expected — that the minister would provide the committee, and through the committee the public, with some indication of how she and the government intend to make use of that power.

Now the irony is that she had all kinds of things to say a week ago, or a week and a half ago. he refuses even, for the purpose of the committee, to confirm what she meant by those public statements. I talked about what she said on the 18th. On the 19th, she said that we’re implementing a fee that is “in line with other jurisdictions.” It’s a “modest fee” and “other jurisdictions have a fee between $5 and $50. I’m recommending a number right in the middle of that.”

[4:50 p.m.]

Look, if that’s her recommendation, that’s her recommendation. But the committee is entitled to know that here on the record. That’s an obligation she has. That’s part of the democratic process. If she’s not willing to share that information about how her and the executive council intend to make use of this new power, then they don’t deserve to have it. But it does speak volumes to the degree to which arrogance seems to set in when a minister of the Crown says: “I want a power, but I have no intention of discussing with you how I intend to make use of that power.” That’s an abuse.

There is this interesting exchange that was reported where the minister said to a reporter, “B.C.’s fee is going to be decided through regulation,” and: “I’ve never said $25. I’ve never said that number. I said that the fee ranges from $5 to $50, and we’ll be looking somewhere in the middle of that.” To which the reporter replied: “But that’s $25.” To which the minister replied: “That’s not what I’m recommending.”

Okay. What is the minister recommending? It’s apparently — she has said outside of this chamber — somewhere between $5 and $50. She went further. She said: “The middle of that range, but it’s not $25.” Well, what is it? What is her recommendation?

In asking the committee and the House to grant her the authority to charge these fees, does she not feel any obligation whatsoever to disclose to the committee, to the House and to the public how she intends to make use of the new powers that passage of this legislation would grant her? If she doesn’t, that is a sad day in the history of our parliamentary democracy.

[4:55 p.m.]

Hon. L. Beare: I’ve provided the committee, with this legislation before us here, how government is considering applying fees. I’ve said, both publicly and as part of these proceedings, that individuals seeking their own information would not be charged. I have said to the member in my previous answers, and I stand by that answer, that the determination of a fee is set through a separate process. I do stand by those statements.

M. de Jong: A separate process that excludes the legislative branch, the public and is conducted behind closed doors. But perhaps more troublesome, a revelation here today from the minister that she and the government, apparently, in asking for authority, legal authority, to embark on the creation of a new set of charges on members of the public…. She feels absolutely no obligation to reveal in any way how she and the executive council, the government, intend to make use of those powers. That is remarkable and remarkably sad.

Before the minister came in, we were dealing with another piece of legislation, Bill 27. It deals with an unrelated matter involving election finance. It’s a short bill. But I was sitting here, thinking: isn’t that interesting. A piece of legislation that involves providing an allowance, money to politicians, sets out in detail how much that will be, to the cent, and includes a mechanism for how that amount will change and go up in the future.

But when it comes to discussing how much money this government is going to take out of the pockets of citizens, the minister, in asking for the power to do that, doesn’t want to even discuss — never mind an amount — even confirm a range. Does she realize how ridiculous, how anti-democratic, how troublesome that must appear to members of the public? It’s astounding.

Now, the minister and the government are somewhat the architects of their own problem here, because had they availed themselves of the services of the special committee, the minister could have stood here and said: “Well, you know, we’ve received input from the committee on this point, and we’ll be guided.” She could have fallen back on that as an explanation and engaged in a conversation about that. But of course, they have chosen, as is now all too well known, to sideline the committee that is charged with considering these matters.

I’m going to ask one more time, I suspect in vain, for the minister to make it clear. She will, I expect, do this by virtue of another non-answer. But to simply confirm that today, with respect to section 5 — and eventually, when we get to, I think, section 44 — she, on behalf of the government, is seeking support from this committee to create a legal power to charge members of the public a fee, but she steadfastly refuses to provide this committee, and through this committee the public, with any indication of how she and the government intend to make use of that newly acquired power.

[5:00 p.m.]

Hon. L. Beare: The member and I have had a couple of questions on this up until now, and I thank the member for that question. I know the member knows that in cases such as this and in legislation like this, once the legislation is passed, the regulations follow, and we cannot officially set the fee in regulation before the power is given within the legislation to actually set it.

I know the member wants to share his views and the concerns of British Columbians around a potential fee, and I welcome that. Our government is listening. I am listening. I think it’s very important to hear that feedback on what a potential fee should be.

I thank the member for his interventions in clause 1 and in sharing that information. I thank everyone who has written to my office to share their thoughts, because our government is listening. That will be taken into account, and I thank you.

M. de Jong: No one is asking the minister to officially set anything. We’re asking her to confirm and explain remarks she has made in the public that relate directly to the exercise of a power, a new power, that she and the government are seeking by virtue of passage of this legislation. She has, the record will show, steadfastly refused to do so, and that is a very sad day for democracy.

A. Olsen: Does the minister agree that if the government chose to, they could set that fee in legislation?

[5:05 p.m.]

Hon. L. Beare: FOIPPA’s current fee structure is set out in regulations, and a new fee would be aligned with that approach. The proposed new fee is also aligned with every other jurisdiction across Canada that has an application fee, which are all set through regulation.

A. Olsen: I understand how the other fees are established. What I think is important to acknowledge here is that the context of how the minister has been answering these questions makes it sound like the fee cannot be set in legislation. I just want to be clear that the minister is making a choice to continue this process of setting this fee through regulation.

What’s important to point out here is that a fee that is set in legislation requires this House to reconvene to change that. A fee that is set in regulation only requires the minister to make that change through an order. I’m just wanting to be clear — the minister is making a choice to set this fee, this application fee, through regulation?

Hon. L. Beare: The bill before us is consistent with the current act. FOIPPA’s current fee structure is set out in regulations, and a proposed new fee is aligned with that approach. The proposed new fee would also be aligned with every other jurisdiction that has the application fee set through regulation.

The Chair: Seeing no further questions, shall clause 5 pass?

Division has been called.

[5:10 p.m. - 5:20 p.m.]

Clause 5 approved on the following division:

YEAS — 46
Alexis	Anderson	Babchuk
Bailey	Bains	Beare
Brar	Chant	Chen
Chow	Conroy	Coulter
Cullen	Dean	D’Eith
Dix	Donnelly	Dykeman
Eby	Elmore	Farnworth
Fleming	Glumac	Greene
Kahlon	Kang	Lore
Ma	Malcolmson	Mercier
Osborne	Popham	Ralston
Rankin	Robinson	Routledge
Routley	Russell	Sandhu
Sharma	Simons	Sims
R. Singh	Starchuk	Walker
	Whiteside
NAYS — 26
Banman	Bernier	Bond
Cadieux	Clovechok	de Jong
Doerkson	Furstenau	Halford
Kirkpatrick	Kyllo	Letnick
Merrifield	Milobar	Morris
Oakes	Olsen	Paton
Ross	Rustad	Stewart
Stone	Sturdy	Tegart
Wat		Wilkinson

The Chair: The committee will go into recess for five minutes.

The committee recessed from 5:24 p.m. to 5:29 p.m.

[R. Leonard in the chair.]

Clauses 6 and 7 approved on division.

On clause 8.

[5:30 p.m.]

B. Banman: I appreciate the opportunity to ask a few questions on clause 8.

With whom did the government consult with on this act? How many First Nations were consulted and how?

[N. Letnick in the chair.]

Hon. L. Beare: The Ministry of Citizens’ Services has had meaningful dialogue with the Union of B.C. Indian Chiefs, with the First Nations Summit, with the First Nations Leadership Council, with the B.C. Assembly of First Nations. We also engaged with treaty First Nations, including meetings with representatives from the five Maa-nulth Nations, the Tsawwassen First Nation and the Nisg̱a’a Lisims Government.

In order to gain the perspective of Indigenous peoples on access to information and privacy, we’ve twice invited the leaders of over 200 B.C. First Nations to provide input earlier this year — most recently, in an online questionnaire. In response to the invitation, representatives from the Tk’emlúps te Secwépemc Nation requested a meeting with my ministry staff, which was held in September 2021.

We continue to work with the Ministry of Indigenous Relations and Reconciliation, as well as Indigenous legal relations, whose feedback helped inform this proposal.

[5:35 p.m.]

B. Banman: What were the recommendations that resulted from these consultations?

Hon. L. Beare: What we heard in general from First Nations was there were not sufficient protections within the act regarding First Nations information, cultural and sharing of government information with them.

In clause 8, this extends protections to First Nations information. Specifically, what we heard from First Na­tions was that the 15-year protection outlined in the previous act was not enough. So that has been removed in clause 8.

E. Ross: In reviewing Bill 22, the freedom-of-information act, I listened to the answer given to my colleague from Abbotsford South.

I’d like to take it back a bit, to the definitions. In subsection 8(a), the term “aboriginal government” has been stricken and replaced with “Indigenous governing entity.” Can I ask the minister: what is the definition of Indigenous governing entity?

[5:40 p.m.]

Hon. L. Beare: The definition reads that “‘Indigenous governing entity’ means an Indigenous entity that exercises governmental functions and includes but is not limited to an Indigenous governing body as defined in the Declaration on the Rights of Indigenous Peoples Act.” So the intent is to be as broad and as inclusive as possible in this act.

E. Ross: Is there a reason why the wording is different from the definition in Bill 41, the Declaration of the Rights of Indigenous People, where the definition actually has a different term? It doesn’t say “entity;” it actually says “Indigenous governing body.” But the definition there means “…an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982.”

[5:45 p.m.]

Hon. L. Beare: The Indigenous governing entity does include Indigenous governing bodies in it, as I just read, but we wanted to make sure that we were being as inclusive as possible. The goal of it is to ensure that no one that currently has rights under FOIPPA has them taken away. We wanted to make sure we were being as broad and inclusive as possible.

E. Ross: Thank you for that. Section 35 of the Constitution Act is actually a pretty significant section of our constitution in Canada. I was trying to figure out whether or not the government’s bill — Bill 41, United Nations declaration of the rights of Indigenous people — actually held this definition, this section 35, as a foundation of Bill 22.

Can I ask the minister what the minister’s opinion is, in terms of what an Indigenous governing entity is, in terms of the definition given in the UNDRIP bill, Bill 41?

Hon. L. Beare: In order to provide as much protection as possible under the act, we see an Indigenous governing entity including the Indigenous governing body but one that is also exercising governmental functions as well. We want to make sure we’re being as inclusive as possible. Anyone who currently has rights under FOIPPA…. We want to ensure that is not being taken away in this act.

E. Ross: But this is the thing. Under section 35, it actually discloses that Aboriginal rights and title are recognized by the constitution in Canada, and that’s the definition that’s been actually used in Bill 41. So when you dig deeper into that, you’re actually talking about rights and title that are held on behalf of the community. So it only stands to reason that government’s got to determine who actually represents the community’s interest in terms of rights and title.

I understand the government actually uses a broad definition to include the Assembly of First Nations, which does not have rights and title, the Union of B.C. Indian Chiefs, which does not have rights and title, or maybe even the leadership council, which does not represent rights and title. It’s the community that actually holds rights and title.

To drill right down to it, what is the minister’s opinion in terms of who represents the community — who, in turn, represents the rights and title?

[5:50 p.m.]

Hon. L. Beare: I agree with the member. Organizations such as the UBCIC are not exercising governmental functions, so this section would not apply to them.

E. Ross: To the minister, thank you for that. That affirmation actually speaks volumes, but the question was: how does the government actually define the leadership entity of a community, who represents rights and title? How does a government determine that, now that we’ve determined that it’s not the Assembly of First Nations, it’s not the leadership council, and it’s not the Union of B.C. Indian Chiefs.

How does the government determine who is actually the Indigenous governing entity, when they’re talking about the consultation, that’s actually determined as per Bill 41, the UNDRIP bill?

Hon. L. Beare: I just want to make sure I’m getting information as accurate as I can for the member. Could the member please repeat the question, because I want to make sure I’m answering correctly.

E. Ross: The question relates to the definition of an Indigenous governing entity. As per the UNDRIP bill, the definition of an “‘Indigenous governing body’ means an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982.”

Now, we already determined that that does not include the Union of B.C. Indian Chiefs. That does not include the Assembly of First Nations. That does not include the leadership council or any other entity, for that matter, that is not representing the community when we’re talking about Aboriginal title.

[5:55 p.m.]

When we’re talking about the community, at the community level — and we were talking about this previously, about the consultation that this government undertook — how does this government determine who is actually an Indigenous governing entity, based on the definition of Bill 41, the UNDRIP act?

Hon. L. Beare: The definitions section is in section 48 of the bill. I want to make sure I’m giving the member the correct information here, so I’m asking if the member would be willing for me to take this question under advisement and seek the correct legal answer. Then, in section 48, I could provide the member the correct answer when we get to the definitions.

E. Ross: Okay. That’s fair. Thank you, Minister.

It’s a simple question. But it’s got huge consequences when you’re talking about the Constitution of Canada, especially when we think about the intention of section 35 of the Constitution Act, 1982. Really, what we’re talking about is trying to understand how the government determines who to negotiate with in terms of these promises that were made under Bill 41, the UNDRIP bill.

It’s important, because we’re talking about rights and title, but if the definition of leadership is too broad, you could literally take your pick on who to consult with in a community. When there’s, really…. Let’s face it. There’s a legal entity in just about every single First Nations community that’s democratically elected. Now, there may be hybrids out there, but that’s an internal government system unto that community themselves.

That’s really no business of the government, to get into that level of detail, but there is a legal definition of leadership in every community. There is. Otherwise we wouldn’t see the agreements being signed for the last 15 years.

[6:00 p.m.]

Why this is important is because in subsection 1(3), if we don’t nail down this definition, the government is actually in danger of contradicting one of its own principles in Bill 41, the UNDRIP bill, which is pretty strong language. It means something when you’re talking about the legal aspects of First Nations issues. Subsection 1(3) says: “For certainty, nothing in this Act, nor anything done under this Act, abrogates or derogates from the rights recognized and affirmed by section 35 of the Constitution Act, 1982.”

That’s basically what we’re talking about if we can’t even nail down the legal definition of an Indigenous governing body, especially when we’re talking about the consultation and accommodation of the legislation that we’re talking about today. But thank you for that answer, Minister. I’ll take it under advisement, and I look forward to the answer.

Further to the consultation question that was brought up by my colleague from Abbotsford South…. I’ve been asking every minister these questions, by the way, and I haven’t gotten a specific answer in terms of what was promised under Bill 41.

In terms of the consultation process — which I don’t quite understand just yet — by the government, in relation to the previous government, there’s a section in Bill 41, section 3: ”In consultation and cooperation with the Indigenous peoples in British Columbia” — that doesn’t speak to an Indigenous entity, which is kind of curious — “the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.”

Can I ask the minister: is there an assessment or a report or something that clarifies that the government actually lived up to the duty that was enacted as per section 3 of Bill 41 and that was carried out on this Bill 22? That’s a long question, isn’t it?

[6:05 p.m.]

Hon. L. Beare: I know these are important questions, so I want to try and give the best answer I can to the member. I’m going to go through a bit, again, of the consultation that we’ve done.

Citizens’ Services made sure that we were inviting Indigenous leaders from the over 200 First Nations across B.C. to provide feedback. We did receive responses from some of the nations. We also wanted to make sure that we were having meaningful dialogue with representatives from the Maa-nulth First Nation, the Tsawwassen First Nation, Nisg̱a’a Lisims Government. The Tk’emlúps te Secwépemc Bands requested a one-on-one meeting with the ministry for further information.

[6:10 p.m.]

We worked very closely with Indigenous legal relations in building this bill and have done our best to be attentive and make sure that we are being attentive to the requirements of the declaration on the rights of Indigenous peoples as we developed this legislation. In working with Indigenous legal, we also wanted to make sure that we were aligning with the UN declaration on the rights of Indigenous peoples.

E. Ross: I wasn’t necessarily asking about the consultation record — or the accommodation, for that matter. It was my fault. It was quite a convoluted question. The question was, basically: after this government’s version of consultation and after compiling the many, many responses, did the government actually put together any type of assessment or report that shows that this freedom-of-information law was consistent with the declaration, Bill 41?

It’s quite the ask. I understand that. But this was the government’s commitment when they actually enacted Bill 41. “In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent….”

What I am asking is: what rationale or what report or what study has been done to ensure that freedom of information, Bill 22, is consistent with the declaration as per section 35 of the constitution?

Hon. L. Beare: I want to back up with the member for a minute, because I do think it is really important for all of us to acknowledge the member’s questions, which are very important, because we were the first jurisdiction in Canada to adopt the UN declaration on rights of Indigenous peoples through legislation, affirming the law of human rights of Indigenous peoples. We did that unanimously in the House, with the member as well.

[6:15 p.m.]

We are continuing to learn across government, through our ministries, as we go through our consultation process. We are consulting deeply and earlier than we ever have before on proposed legislation. As part of our commitment to consultation, we are discussing with Indigenous partners the legislation that’s before us. I think we need to take a moment and realize that it’s in the minister’s mandate letter.

I know the member knows, and it’s very important to know, that we are working on a plan to establish a secretariat that will help coordinate government’s commitment to make sure new legislation and policies are consistent with the Declaration Act, including appropriate consultation with Indigenous peoples. So we’ve conducted our consultation. We’ve discussed with Indigenous legal.

I think it’s very important to acknowledge the ways that this bill is going to support reconciliation — the rights of Indigenous governing bodies and entities to administer programs and manage lands and resources. We need to make sure that we’re more collaborative between provinces and Indigenous governing entities in developing policies and programs and joint enforcement on monitoring activities. These are important things and important work, including responding to direct requests like removing the 15-year protection limit on Indigenous information.

We’re going to keep working with Indigenous partners. We’re going to keep consulting on things like this bill. It’s very important to know that this work will be ongoing for a long time — with the member across the way, with our government, with Indigenous partners — because it’s important work.

E. Ross: With all due respect, that’s a stump speech. The question is pretty specific. How does the government show that Bill 22 is actually in alignment and consistent with the declaration, Bill 41? There has got to be a written record somewhere. There has got to be an analysis done in terms of how the freedom-of-information bill is consistent with the United Nations declaration, regardless of the consultation.

Now to be clear, I don’t see how this fits. I never did see how it fits. I actually thought Bill 41 was a political bill and didn’t have any substance of the Aboriginal rights and title case law that had been determined in courts in Canada and B.C. for the last 40 years. The principles are actually never mentioned in Bill 41, but that’s beside the fact.

What I’m really asking for is: does the minister have an analysis of how Bill 22 is in alignment, in terms of the laws of British Columbia, and is consistent with the declaration? How is that justified in terms of Bill 22? There has to be some kind of report that proves that section 3 of the United Nations declaration on the rights of Indigenous peoples is being enacted in an official manner by this government.

[6:20 p.m.]

Hon. L. Beare: We believe this bill aligns with B.C.’s Declaration on the Rights of Indigenous Peoples Act. This bill adds more information-sharing with Indigenous partners here in section 8. It provides more protections on the information that is shared. We’re going to see later in the bill how Indigenous partners have more control over their information.

[6:25 p.m.]

It’s important for us to continue to work in collaboration and in consultation and in cooperation with our Indigenous partners. We’ve shown that through our consultation, and we’re showing it through our work that we’ll continue to do with our partners.

We have worked with the Ministry of Indigenous Relations and Reconciliation as well as Indigenous legal relations, whose feedback did help inform this proposal, as well as all the consultation that I’ve outlined for the member. I’m looking forward to… As we go through, clause by clause, in this bill, there are a number of areas where protecting Indigenous peoples’ sensitive cultural information, in ensuring that things like the 15-year limit are removed, are important to be included. We’re going to keep doing that.

B. Banman: In clause 8(3), it states: “Subsection (1) does not apply to information that is in a record that has been in existence for 15 or more years….” Fifteen seems a little arbitrary. How did we get to that number?

[6:30 p.m.]

Hon. L. Beare: So 15 years is what the existing provision is under the act, and that’s not being changed for other entities which are listed in the section. The intent of the change in this clause here before us is to remove that 15-year limit for Indigenous partners to allow for greater protection of the Indigenous partners’ information, as requested by Indigenous partners.

B. Banman: Can you please give a specific example or an example of subsection 3(b) in practice?

[6:35 p.m.]

Hon. L. Beare: Indigenous partners asked for extended protections for sensitive information provided for the practical examples — land claims or treaty negotiations, for example. So ensuring that we’re extending those protections on that sensitive information.

Clause 8 approved on division.

On clause 9.

B. Banman: What are going to be the results for Indigenous peoples by the changes brought in to the new section 18.1?

Hon. L. Beare: While my team is helping me prepare an answer, I just wanted to make a clarification on something I said earlier to the member.

The member previously asked me, on the drafting of the bill, whether I had met with the Premier’s office to get direction. There were three questions on that, and I advised the member that, no, there were no meetings to get direction from the Premier’s office.

Then there was a fourth question that, in us reviewing Hansard, I want to clarify. It switched to: are there any meetings with the Premier’s office or Premier’s chief of staff regarding the bill? Of course. Our government is collaborative. We know the Premier is part of cabinet, and the Premier’s staff are kept up to date on legislation in the fall.

There was just a nuance in the question that switched, so I wanted to make sure I was being very clear with the member. While no directions were provided, of course, as part of a collaborative government, I do meet with the Premier and the chief of staff.

We’ll get the answer to the question that the member was asking.

The Chair: Abbotsford South, the minister is working on answering your question.

B. Banman: Thank you, Chair. Actually, based on the response I just got on the response from the previous question that I asked, I do believe, also, in that, I asked if there was any direct or indirect direction from the Premier’s office or Premier’s staff.

Hon. L. Beare: In the new section 18.1, in FOIPPA, it will provide for a broader spectrum of protections to include Indigenous cultural heritage, traditional knowl­edge and traditional cultural expressions. We will require that a public body consult with the impacted Indigenous peoples if the public body is contemplating disclosure of such information.

B. Banman: What consultation did government undertake with respect to this section specifically? Because it’s a fairly sensitive section. It’s an important section.

[6:40 p.m.]

Hon. L. Beare: I did outline the consultation we’ve done previously. These are exactly the types of protections we were hearing Indigenous partners requesting — making sure that Indigenous partners were able to protect their cultural heritage and protect their traditional knowledge, their cultural expressions and their manifestations of science, technologies and cultures. So this is exactly that type of protection we want to ensure.

B. Banman: How many times were Indigenous groups and stakeholders consulted throughout the development of 18.1, and what recommendations did these groups and stakeholders communicate during those consultations?

Hon. L. Beare: Specifically to this clause, we heard this section should be mandatory to ensure that control over the sensitive information discussed rests with Indigenous partners that are impacted. We’re going to see that in the upcoming clauses relating to consultation.

B. Banman: I believe the minister only answered half of the question. The preamble of the question was: how many times were Indigenous groups and stakeholders consulted throughout the development of 18.1? I didn’t hear an answer to that.

[6:45 p.m.]

Hon. L. Beare: I have outlined for the member the consultation that has happened on this draft legislation before us. I’m happy to share with the member again, because it’s on the entire substance of the bill.

In 2018-19, consultation did begin, all through into 2020-21. We did have discussions with First Nations Leadership Council members as well as Indigenous leaders across the province, including an invitation to the over 200 nations. We did make sure that we had conversations with the Maa-nulth and the Tsawwassen First Nations and the Nisg̱a’a Lisims Government. The Tk’emlúps te Secwépemc did ask for personal meetings with my team. We were able to get feedback and work together in consultation and in cooperation with Indigenous peoples on the substance of the bill.

B. Banman: In the development of 18.1, it says: “The head of a public body must refuse to disclose information if the disclosure could reasonably be expected to harm the rights of an Indigenous people….” Could the minister define what is meant by “could reasonably be expected to harm”?

[6:50 p.m.]

Hon. L. Beare: In the areas that we outlined in this section — the cultural heritage, the traditional knowledge, the cultural expression, the manifestations of science, technologies or cultures — as the member can see in subsection (2) there, Indigenous peoples do have to consent in writing to the disclosure. We’re going to get more into that in the consultation section, which is upcoming. So for the member’s assurance, it’s the Indigenous peoples themselves who will make that determination.

With that, the committee would like to rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 6:51 p.m.

The House resumed; Mr. Speaker in the chair.

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

Hon. L. Beare moved adjournment of the House.

Motion approved.

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

The House adjourned at 6:52 p.m.