PROCEEDINGS IN THE
DOUGLAS FIR ROOM

Committee of the Whole House

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

(continued)

The House in Committee of Supply (Section A); M. Dykeman in the chair.

The committee met at 2:47 p.m.

On clause 21 as amended (continued).

B. Banman: As I started to yesterday, there is a letter that I’ve received, and it is applicable to this clause and subsequent clauses. As such, I would like to get that onto the record.

It is a letter that has come to us from the Union of British Columbia Indian Chiefs, dated November 23, 2021, addressed to the Premier and to the Minister of Citizens’ Services. It’s an open letter, and it calls for the immediate withdrawal of Bill 22, Freedom of Information and Protection of Privacy Amendment Act, 2021.

“Dear Premier and Minister:

“On October 18, 2021, your government introduced amendments to British Columbia’s Freedom of Information and Protection of Privacy Act, FIPPA, through Bill 22. We have learned that Bill 22 is quickly proceeding through the Legislature and is anticipated to receive royal assent before the end of the current legislative session on November 25.

“However, the bill in its current form fails to uphold First Nations’ unique rights of access to information, as many of the proposed amendments will create new barriers for First Nations requiring access to provincial government records to substantiate their historical grievances against the Crown.

“Further, several proposed amendments disregard significant concerns we identified in formal submissions to the public engagement process and introduce measures about which we were never informed, contravening article 19 of the United Nations declaration on the right of Indigenous peoples, UN declaration, and your government’s legal obligations under the Declaration on the Rights of Indigenous Peoples Act, DRIPA.

“We call on your government now to withdraw Bill 22 and establish a process of substantive engagement with Indigenous governing bodies affected by FIPPA to ensure that transparency, openness and fairness are enhanced and First Nations’ rights under the UN declaration are upheld.

[2:50 p.m.]

“The right to access information is a fundamental component of First Nations’ efforts to resolve historical land-related grievances, such as specific claims. Because First Nations are required to produce a wide range of records to substantiate their land claims and historical land-related grievances against the Crown. Freedom of information has direct impacts on the ability of First Nations to achieve justice through government mechanisms of redress, a right articulated in Article 28 of the UN declaration.

“In April 2018, the Union of British Columbia Indian Chiefs made a formal submission to the Ministry of Citizens’ Services engagement process, in which we identified key barriers First Nations routinely experience when attempting to obtain provincial government records through freedom of information, including prohibitive fees and the denial of requests for fee waivers, prolonged delays, overly broad applications of exceptions to disclosure, widespread failure to create, retain and transfer records, and the exclusion of subsidiaries from duties of disclosure. We emphasized that the barriers faced by First Nations seeking information access must be specifically and systematically targeted such that the rights to redress are advanced and protected.

“The provisions in Bill 22 ignore our concerns and further entrench barriers to access. The introduction of an application fee for all freedom-of-information requests will disproportionately harm First Nation requesters, since they experience higher levels of poverty and often lack resource capacity.

“Your characterization of the new fee as modest displays astounding ignorance and insensitivity, since legal processes of redress for historical losses require First Nations to make multiple formal requests for records from various public bodies in order to obtain evidence. It is nonsensical that a government publicly committed to reconciliation, transparency and accountability would impose further financial hardships on First Nations who require access to provincial government records to substantiate claims of government wrongdoing. The bill also prevents the Information and Privacy Commissioner from waiving the application fee if the request is in the public interest.

“It is especially egregious that the introduction of an application fee was never discussed with First Nations or their representative organizations and, as such, contravenes Article 19 of the UN declaration, which requires governments to consult and cooperate in good faith with Indigenous peoples to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. The provincial government’s selective application of Article 19 violates the DRIPA and betrays a colonial attitude towards its implementation.

“Bill 22 introduces no penalties for public bodies that exceed legislative timelines for providing requested information, which will do nothing to address delays and the under-resourcing of the information management system which accounts for it. The bill continues to exclude subsidiaries from mandatory disclosure, compromising First Nations’ abilities to obtain complete historical records required for their claims to succeed.

“Alarmingly, the bill removes the Office of the Premier and executive council operations from the list of public bodies covered by the FIPPA and fails to create, enforce or oversee a duty to document. This amounts to wilful obstruction and hampers First Nations seeking access to information.

[2:55 p.m.]

“While specific claims are historical grievances that occurred at least 15 years prior to the filing of a claim, this bill effectively absolves your office of any legal responsibility to disclose records related to the actions or decisions which may be subject to future claims. The same can be said about the bill’s failure to make it mandatory for public bodies to create records of all actions and decisions, something the provincial NDP championed when it was in opposition and about which it now, holding a majority in the Legislature, seems to regard with disdain.

“Advocates for government accountability and transparency, organizations committed to human rights and the provincial Information and Privacy Commissioner are condemning this bill, calling it a highly unethical step backwards. The amendments introduced through Bill 22, as discussed above, will have concrete negative impacts on First Nations’ access to justice. This is a fundamental concern for the communities we represent.

“We reiterate our call for you to withdraw Bill 22 and take immediate steps to make meaningful, direct dialogue with First Nations a priority. This work must be guided by transparency, due process and full enactment of the government-to-government approaches articulated within the UN declaration and outlined in DRIPA.

On behalf of the Union of B.C. Indian Chiefs.”

It’s signed Grand Chief Stewart Phillip, the president; Chief Don Tom, vice-president; and Judy Wilson, secretary-treasurer. Carbon copies have been sent to the UBCIC Chiefs Council, B.C. Assembly of First Nations, First Nations Summit and the Special Committee to Review the Freedom of Information and Protection of Privacy Act.

Now, after reading through that…. I had asked previously whether or not there was meaningful consultation done, with First Nations specifically. After hearing what the Union of B.C. Indian Chiefs have had to say in this letter, I think I would like to offer the minister an opportunity to respond to this letter in a meaningful, transparent way and address the concerns as outlined in the letter.

I know the minister has a copy as well and has had a chance to review it, I would hope.

[3:00 p.m.]

Hon. L. Beare: Thank you to the member for the question. I want to thank the Union of B.C. Indian Chiefs, as well, for the important input that they provided. Our government is committed to reconciliation and to working with Indigenous partners as we move forward on things like this legislation.

I have, in this House, outlined the engagement process that we have undertaken on this bill, including Indigenous engagement. I’ve repeatedly stressed the importance of the broad input that we did receive on the proposed amendments.

For the member, again, our ministry had a number of meaningful discussions with the First Nations Leadership Council. The conversations included representatives from the Union of B.C. Indian Chiefs, the First Nations Summit and the B.C. Assembly of First Nations.

[3:05 p.m.]

Now, their discussions helped us inform a number of the proposals which specifically relate to Indigenous peoples and are embedded in the legislation we have here today.

We did also provide an invitation to the leaders of First Nations across the province to complete an online questionnaire to gain that perspective of Indigenous peoples and their views on access to information and privacy.

We did have a request from the Tk’emlúps te Secwépemc Nation to meet with the ministry directly, which was held in early September 2021.

We did send a formal invitation to the leaders of the Union of B.C. Indian Chiefs, the First Nations Summit, the B.C. Assembly of First Nations and Métis Nation to discuss the proposed amendments.

Within the treaty established First Nations notification framework, the ministry also engaged with representatives from the Maa-nulth Nations, the Tsawwassen First Nation and the Nisg̱a’a Lisims Government.

All of that did build on engagement that we had in 2018-2019, when ministry staff held discussions with the UBCIC and the First Nations Summit on the impacts, and the unique impacts, of access and privacy to Indigenous peoples.

We received, in 2018, a submission from the UBCIC, which the member referenced in the letter. A number of the concerns raised in that 2018 letter are also raised in the letter here before us. There’s only one substantial difference — that being the Office of the Premier. I know we’ll get to that.

Actually, what has happened is that a number of those concerns have been addressed in this legislation. I know the member, over the next four hours that we’re here today, is going to take us through these concerns. They’re going to ask a number of questions on the concerns. So I’ll be able to address how we’re actually meeting a majority of those concerns, within that letter here, within our legislation.

Absolutely, I believe access to information — particularly, the importance of access to Indigenous information — is vital to reconciliation here in our province. I’m always very happy to receive feedback from any partners in government around work that we’re doing.

I want to make sure that we clarify the record on what actually is being done through this legislation. I look forward to the next four hours, where we’re going to be able to do that.

B. Banman: This is now the second piece of correspondence. One is from the Privacy Commissioner laying out a number of shortcomings — I’m going to be polite with the word “shortcomings” — and oversights, or lack of oversight, that they have seen.

This particular letter, however, is an open letter. I’m going to read to the minister one more time, if I may. It calls for the immediate withdrawal of Bill 22, Freedom of Information and Protection of Privacy Amendment Act, 2021.

Will the minister, here and now, declare that she will heed the request of the Union of British Columbia Indian Chiefs and withdraw this bill?

[3:10 p.m.]

Hon. L. Beare: Thank you to the member for the question. I think it’s important to take a look at what this legislation is. It’s before the House today because it’s outdated, because it hasn’t been substantially updated since 2011 and because it’s no longer reflecting the expectations and the needs and the experiences that our public are having.

We want to make sure that this legislation keeps pace with new technology. We want to make sure it enhances privacy protections. We want to make sure it provides the level of service that people expect of government.

Now, what we’ve done with this legislation is balance all the input that we’ve received since 2018. This legislation has been before the House for like a month and a half now, so I think I’m going to go back and just outline some of the consultation. I won’t do all of it, because I have talked about it before with the member. I’m going to talk about some of the consultation, just in 2020-21. I think it’s important, when we talk about input, that we’re balancing all the input that we’re receiving around this legislation.

In 2021, on May 28, we had an assistant deputy round table, which was all the K-to-12 school districts. On June 3, we did a minister round table with the health authorities and other representatives. On June 8, we did a minister round table with the tech sector.

[3:15 p.m.]

On June 15, we did a committee presentation to ministry privacy officers. On June 15 again, we launched our public survey on information and access to privacy to the general public. On June 17….

Interjection.

Hon. L. Beare: On June 17, we had a stakeholder committee presentation to the information security advisory council. Also on the 17th, we spoke with ministry chief information officers. On the 17th, we had a minister round table with post-secondary institutions.

On the 24th, we did an assistant deputy minister round table with local governments. On July 8, we did a stakeholder committee meeting with broader public sector chief information officers. On June 21, we did another survey out to the general public on information and access to privacy. That’s in addition to the First Nation engagements that I outlined in my previous answer.

What we have with the legislation before us is a balanced approach to all the input that we’ve had, as freedom of information and privacy protection serves all British Columbians. So we want to make sure that we’re balancing the input we receive, that we’re addressing a bill that has not been substantially updated since 2011 and isn’t meeting people’s needs. We’ve got that before us today.

The Chair: Just before we go on, Members — all Members — just a very friendly reminder that we are on clause 21, which has some very specific provisions. Although the letter speaks very broadly to the whole bill and the consultation speaks very broadly to the whole bill, it’s a friendly reminder to just stay, please, on clause 21.

Over to you, Member.

B. Banman: Thank you very much. I would remind the Chair, respectfully, that this particular letter affects not only this clause but subsequent clauses that are going to follow it.

I now have two…. I appreciate the minister’s words — that she wants to modernize the legislation, that she wants to have a balanced approach. I’m confused. There was an opportunity to put this through the special committee, and it was not done. I have a letter from the Privacy Commissioner, whose opinion this House values greatly, that outlines several flaws within this legislation. And I now have a letter in my hand from the Union of British Columbia Indian Chiefs that also outlines some serious concerns.

I would ask the minister…. She talked about wanting to ensure that there was meaningful consultation. I’m going to quote, because it was an awfully long, lengthy letter: “The bill, in its current form, fails to uphold First Nations’ unique rights of access to information, as many of the proposed amendments” — current clause and future, I’m going to put in for your benefit, Chair — “will create new barriers for First Nations requiring access to provincial government records to substantiate their historical grievances against the Crown.”

Does the minister agree or disagree with that statement?

[3:20 p.m.]

Hon. L. Beare: Each of the concerns that are outlined in the letter are reflected in substantial clauses that we have in the bill, moving forward, so we’re going to be able to address all these concerns in the appropriate sections as we move forward.

I think it’s going to be very important to inform the member, inform the House and inform those who have written in, including the UBCIC, what this legislation actually means and how the input we’ve taken from the 2018 input that they provided, which is very similar to the letter received there, is actually reflected in the substantial changes in the bill.

B. Banman: I didn’t hear a yes or no in that, but I will look forward to finding the answer as we go further.

The next question I have, through you, Madam Chair, to the minister is….

Interjection.

The Chair: All through the Chair, please. No heckling.

Member.

B. Banman: Thank you.

My question, then. Again, it was a fairly lengthy letter.

“Several proposed amendments disregard significant concerns we identified in formal submissions to the public engagement process” — I think it’s worth repeating: disregard significant concerns we identified in formal submissions to the public engagement process — “and introduce measures about which we were never informed, contravening article 19 of the United Nations declaration on the rights of Indigenous peoples and your government’s legal obligation under the Declaration on the Rights of Indigenous Peoples Act, DRIPA.”

I’d be interested in the minister’s response to that in particular — what I consider to be almost a damning statement — from the Union of British Columbia Indian Chiefs, with regard to this process.

Hon. L. Beare: Again, a number of the concerns that are outlined in that letter are addressed in this legislation. We took the input from 2018, which was very similar to the letter that the member has before him now. Actually, the concerns are met in this legislation. I’m very excited to explain to the member how we’re addressing those concerns — and addressing those needs through the legislation — in the coming sections.

A. Olsen: I think it’s important to acknowledge that it’s going to be incredibly challenging to get to all the sections of this bill and to give it the dutiful work that we’re supposed to be doing, considering the fact that they’re closing debate in four hours on this bill. All along this process, the minister has suggested that she can’t wait to provide the responses, yet has been very challenged, I think, to actually provide coherent responses to many of the questions that have been raised by the members of the opposition.

The question I have is: did the Indigenous leadership — specifically, here, the Union of B.C. Indian Chiefs and the First Nations Leadership Council — see the bill that we’re talking about today, the contents of the bill?

[3:25 p.m.]

Hon. L. Beare: Thank you to the member for the question. As I’ve outlined — and as I want to assure the member, and all members, of the House — there was consultation done, which I’ve outlined, with Indigenous organizations, including the UBCIC, and the general public, as well as public bodies, stakeholders, businesses and people. So the bill reflects what we’ve heard from all our engagement across all sectors.

FOIPPA, as a general piece of legislation, does impact everyone in B.C. Our government considered how FOIPPA impacts Indigenous peoples. We did that through the consultations, which I’ve outlined previously in the House. I highlighted some of it in my earlier question.

We developed proposals, which we have in the legislation before us today, to address those impacts, to address the impacts on Indigenous peoples. There’s increased information-sharing with Indigenous peoples, especially when they’re exercising their rights and title. There are protections on the information that’s provided to government, by Indigenous governments. There’s a whole suite of things that we’re doing in this bill.

There are a number of ways we’ve addressed the concerns that were in the letter. They’re in the subsequent articles in our bill — which I’m looking forward to talking about, so that we can explain how the bill incorporated the feedback provided by the UBCIC in 2018 and by other organizations.

[3:30 p.m.]

I think it’s important to note that we continue to develop our legislation and our policy from that feedback. The legislation we have before us today had substantive changes made to it from the proposals we received from the UBCIC and others.

As we go through each section of this bill, we are going to be able to talk about the concerns that are in the letter that are addressed in sections, moving forward. We’re going to be able to talk about how this legislation…. We took that into consideration — the impacts on not only Indigenous peoples, but the general province of British Columbia as well.

A. Olsen: It’s really tough to actually sit here and listen to this mockery of this democratic process, almost reducing this committee stage to a farce, frankly. I asked a question that I think anybody who’s been in government or anybody who’s been close to government knows the answer to. All the minister had to do was stand up and give the answer, “No, nobody in the consultation process saw this legislation,” because the legislation….

It only is a very unique scenario in which legislation is shared, and very strict NDAs are signed. I know the process; I’ve been through the process. Instead, the minister wants to use a bunch of words to talk around the issue. So let’s get to the point. The point of the question, of course, is because the only way for the Information and Privacy Commissioner, the Union of B.C. Indian Chiefs and a variety of other stakeholders to provide comment on this is once the legislation has been tabled — this part of the process.

If the government is going to just simply put their head down when substantive organizations raise equally substantive concerns, then what we have is exactly that — a farce of democracy, one in which the minister can stand up and almost say anything. We’ve seen it in other debates of bills. I was in a debate yesterday where a minister stood and literally just read the clause back to the people who were asking the question, like that’s some sort of a respectable response to a legitimate question.

We see it here. The minister is suggesting we want to get to the other sections of the bill, knowing full well that they’ve already moved a closure motion on this debate. You don’t actually want to get to the debate.

The question…. I think I know the answer to it, but I’m going to ask it again. It’s a very simple question. Did the Union of B.C. Indian Chiefs see this legislation, see the specific language in the amendments that are made, prior to the legislation hitting the table and being on the debate here in this session of the Legislature?

[3:35 p.m. - 3:40 p.m.]

Hon. L. Beare: The policy intention of the bill was broadly shared as part of our consultation process on clause 21, which we’re on right now. Deeper policy discussions did occur around the information-sharing, which enables information-sharing with Indigenous governing entities who are exercising their rights and title.

That’s one of the concerns, for example, in the letter that I can talk about here in clause 21, as part of that deeper discussion that we had around Indigenous consultation.

T. Stone: I’m happy to rise and participate in some of these questions as well.

I certainly appreciated the question from the member for Saanich North and the Islands. It’s hard to square that circle when, on the one hand, the government is saying that there was engagement and consultation and, on the other hand, the minister can’t or won’t confirm that the actual legislation, the draft legislation, was shared with the First Nations in question, whether it’s the Union of B.C. Indian Chiefs or other similar organizations.

The reality is this. The decision to proceed with this piece of legislation was made by cabinet on March 31, 2021. Any of the stakeholders…. Or at least, our understanding is that stakeholders that were part of this engagement process were required to sign NDAs, which is another standard operating procedure for this government.

We have obtained an FOI request, or the results of an FOI request, that contains a number of interesting documents. Unfortunately, as is typical with FOI requests, there are all kinds of pages that are blacked out, and so forth.

In these documents, one of the more interesting ones that has fewer redactions than elsewhere is speaking notes for the minister as she briefed her caucus, the government caucus, on June 15, 2021. In this, she very clearly states that many stakeholders, including the Information and Privacy Commissioner and others, will not agree with some of the amendments and will voice their other concerns.

Nowhere in these speaking notes, by the way, is there any mention of reconciliation or engagement in consultation with First Nations.

I think it’s a bit much for the minister to be continuing to go back to this notion that there was meaningful engagement and consultation done, when she can’t confirm if draft legislation was shared with First Nations, and confidential documents, at least the unredacted components that we’re able to obtain through FOI, indicate that it didn’t appear to be on her radar screen.

I’ve got to say, I understand why the Union of B.C. Indian Chiefs is so darn frustrated and why they would feel compelled to come forward with this letter that my colleague from Abbotsford has read into the record and that we’ve tried to focus some of our questions on.

I’d like to ask the minister this. This is germane to section 21. It’s germane to every section, because it does involve the input and the engagement that the minister says took place. Again, in light of the fact that this particular letter from the Union of B.C. Indian Chiefs, dated November 23, 2021…. I mean, this is pretty much real time. We’re talking yesterday.

The letter says very clearly: “We call on your government now to withdraw Bill 22 and establish a process of substantive engagement with Indigenous governing bodies affected by the FIPPA to ensure that transparency, openness and fairness are enhanced and First Nations’ rights under the UN declaration are upheld.”

[3:45 p.m.]

That’s a pretty direct request from this organization, the Union of British Columbia Indian Chiefs. If the government continues to extol the virtues of the DRIPA legislation we have in this province and the requirements that are contained within it, then I would expect the government would heed the call of this organization and withdraw this bill so that meaningful engagement can take place.

I’m asking this question on behalf of the Union of British Columbia Indian Chiefs. Will the minister withdraw Bill 22 and ensure that they establish “a process of substantive engagement with Indigenous governing bodies” affected by freedom of information? Will the minister commit to that? What is her answer, on that question, to the Union of British Columbia Indian Chiefs?

Hon. L. Beare: Thank you to the member. I’m happy to re-answer the question, which was posed also by the member from Abbotsford earlier. The member and I spoke just a little bit ago about how our government values reconciliation and how I thank the Union of B.C. Indian Chiefs for their important input that they provided in this letter, which is very similar input to the letter that was provided in 2018. The member and I spoke a little bit ago about how important it is to take all of the broad input that we’ve received around this legislation and draft it into the amendments that we have before us today.

We have been consulting meaningfully on this legislation since 2018, and we outlined that. We outlined some of the consultation we did in 2021. I took the time to go through that. I could go back and talk about the consultation, right from the beginning, if the member would like. We talked, also, about the Indigenous consultation that was done and how that information and that feedback made substantive changes to the legislation that we have before us today.

We have before us legislation that balances all those concerns. It balances the concerns we’ve heard from our engagement with UBCIC and the letter we received from them. It balances the input we’ve received from representatives of the 2,900 public bodies and representatives from the business community, including the tech sector, particularly in our public bodies. It’s also the input we’ve received from our health authorities, our local governments, our universities on how this legislation is out of date and how it’s not meeting the needs of British Columbians.

[3:50 p.m.]

The legislation has not been updated since 2011, and it’s not meeting the needs of British Columbians, particularly during COVID.

I have said to the member, as well, that a number of the concerns that are outlined in the letter that the member is referencing and the letter from 2018 are actually addressed in this legislation. I’m very excited, as we move through the sections, to be able to talk about how we’ve met the needs and how we’ve addressed those concerns and how those concerns and those proposals have actually fed into the draft legislation before us today.

The Chair: Just a very friendly reminder to all members of the House here today to remain mindful of section 11.5.1, the relevancy rule. Also, just a gentle reminder to be cautious, as the use of props is not permitted.

T. Stone: With all due respect, it’s not up to the minister, it’s not up to me, to suggest whether a piece of legislation, which the minister continues to talk about as a modernization of outdated legislation…. So if it’s not up to her and it’s not up to me to determine if it meets the needs of Indigenous peoples and First Nations…. It’s not up to us to make just unilateral declarations that the requirement — it’s not an objective — for engagement with First Nations has been met.

The fact of the matter is this. It’s not anyone in the opposition that is expressing the frustrations and the concerns and the issues that we are canvassing here today in this section. It is the Union of British Columbia Indian Chiefs, in their letter, dated November 23, 2021, yesterday.

I find it frustrating, increasingly, that the minister keeps coming back to: “Well, we’re trying to modernize the legislation. We’re trying to move the ball down the field, so to speak. We’re trying to improve freedom of information in British Columbia.”

Those objectives are all honourable, but equally honourable, and I would argue, extremely important, is that the requirements laid out in DRIPA, that legislation, whether it’s a significant change or a minor change to the laws of British Columbia, must adhere to the requirements in DRIPA and must involve the engagement, the consultation, of First Nations. If that’s not the case….

Increasingly, we see in examples from this government where they’ve, on several occasions, had to actually withdraw other pieces of legislation because it became abundantly clear that the required engagement in the DRIPA legislation hadn’t happened.

I would suggest that having a few conversations with some First Nations leaders prior to introducing legislation — putting out a public survey and asking a few questions, asking for written submissions, and so forth, from anybody and everybody, including First Nations — then taking all of that feedback and that input, and crafting a piece of legislation, a substantial overhaul of an existing act, in this case, relating to FOI, and bringing forward legislation, bringing it to this House, imposing a time allocation….

The member for Saanich North and the Islands rightfully pointed out…. Although I think he suggested that the debate in committee on this bill was going to end today. My understanding is we actually carry through to tomorrow, so I think we have today and tomorrow. Still, the point is that there’s a heck of a lot of detail to cover in this bill, and it’s doubtful that we’re going to get through to the end of it because of the time allocation that’s being imposed.

[3:55 p.m.]

I digress. The point I’m trying to make here is…. Asking a few questions, getting some input, crafting substantial changes and then bringing forward a piece of legislation which, in and of itself, becomes the legal changes…. It becomes the document, if passed, that is going to actually change the laws in British Columbia.

Not providing a copy of that legislation, the bill, to First Nations ahead of bringing it forward for consideration in the Legislative Assembly would, in my mind, constitute a gross violation of the spirit and the intent and, I think, the legal requirements as contained within DRIPA.

Does the minister agree with that, and if she doesn’t, why not?

[4:00 p.m.]

Hon. L. Beare: There has been broad and lengthy consultation on this legislation since 2018. There have been thousands of people, of businesses, of Indigenous groups and organizations who have provided input through that extensive consultation over several years.

We spoke with UBCIC on parts of clause 21. We’re discussing clause 21, which is the section we’re on, before us today right now, specifically clause 21, 33(2). Now, we made significant changes to this section based on the input that we heard from our consultation and from UBCIC. We changed how the section operates. We changed how it references Indigenous rights.

[D. Coulter in the chair.]

In essence, we have made this section better through our consultation with UBCIC. This section, section 21, allows us to share information with Indigenous governing entities. The intent of this section responds to concerns raised and ensures that we can share information with Indigenous governing entities without the need for an FOI.

B. Banman: Moments ago we heard the minister talk about a similar letter that stated out similar concerns from the Union of British Columbia Indian Chiefs. I’ve heard the minister say, “We want to modernize freedom-of-information laws,” and I think everybody in this House is in agreement that’s probably overdue. That’s not the argument.

The minister has mentioned a few times about balance. Well, there’s an issue with that. Clearly, there is more than just balance. There is a duty with regards to DRIPA, the declaration on the rights of Indigenous people, to take their concerns, which are very valid, under consideration. Here we are on clause 21, which talks about the very thing of engagement. Yet the minister has dismissed the previous concerns of not only….

There seems to be a lot of frustration in the room. You hear frustration from the member from North Saanich. You hear frustration from the member for Kamloops–South Thompson. You’re hearing frustration from the Privacy Commissioner. You’re hearing frustration from the Union of British Columbia Indian Chiefs. It’s all down to one thing, which is a lack of meaningful consultation. It’s more than just balance. DRIPA tips the scales. We have a duty.

My question is: if, in the minister’s own words, she’s had previous correspondence from the Union of British Columbia Indian Chiefs which shared the same sentiments as expressed in this letter, why were those concerns not heeded?

Hon. L. Beare: As I’ve said multiple times, this question has been asked and answered, that we have addressed the concerns. They’re in the clauses that we have before us, and I’m very excited to talk about how those concerns are addressed and how we’ve incorporated the feedback that we’ve heard into the amendments we have before us today.

[4:05 p.m.]

In section 21, which we have before us, we had meaningful consultation on specifically 33(2), which is before us. We made significant changes to this section based on the input we heard from UBCIC and from Indigenous partners. We changed how section 33(2) operates. We changed the references to Indigenous rights within this clause.

The section allows us to share information with Indigenous governing entities, which is one of those concerns that is addressed, and I’m happy that we’re able to talk about that in section 22 before us. The intent of this section is to respond to the concerns raised and to ensure that we are able to share information with Indigenous governing entities. We were able to make this bill better in section 22, which we’re discussing before us right now, through our consultation with Indigenous partners.

With that, Chair, I request a 15-minute recess.

The Chair: Okay. The committee will be recessed for 15 minutes.

The committee recessed from 4:06 p.m. to 4:21 p.m.

[D. Coulter in the chair.]

T. Stone: Section 21, which is the focus of our line of questioning at the moment, provides for a new section in the act, which deals with disclosure outside of Canada. So it’s a new section — 33.1. Again, this deals with data residency.

The new section, if this amendment passes, 33.1, says: “A public body may disclose personal information outside of Canada only if the disclosure is in accordance with the regulations, if any, made by the minister responsible for this act.” So my first question would be this: why would the minister include in this new section the words “if any”?

Frankly, this would seem to provide an out for the minister and government not to actually develop any regulations pursuant to this section, which, again, involves the disclosure of information outside of Canada. It would have been tighter and a bit more reassuring, I think, for the public and for British Columbians, if it had just said “in accordance with the regulations made by the minister responsible for this act.” That would basically say there have to be regulations. But it doesn’t say that. It says “if any.”

So I’m curious, again, as to why the words “if any” are included in this new section 33.1. Frankly, the ideal here would have been if the minister had heeded the calls of the Privacy Commissioner and had provided draft regulations to the commissioner’s office ahead of time so the commissioner could have actually provided some input and feedback, and so forth, with the oversight role that the commissioner has. The minister decided not to do that.

The minister has said consistently through this debate that we’re going to see regulations at some point in the future. We have no idea what they’re going to look like or what sections they’re going to pertain to or not.

[4:25 p.m.]

Again, this new section 33.1, which would come to life if section 21 of the bill actually passes, provides the minister with a very useful out to not develop any regulations pursuant to disclosure outside of Canada, again, in relation to a public body being able to disclose personal information outside of the country. So I really just want to ask the minister: why does it say “if any,” as opposed to just requiring the provision of regulations?

[4:30 p.m.]

Hon. L. Beare: Thank you to the member. I appreciate the question.

This is a common legislative drafting approach. It’s enabling to stand the test of time over the legislation. This legislation, as it stands right now, hadn’t been updated in over ten years. Specifically, the provision works in conjunction with section 46 of the bill, which enables the minister to issue regulations that support public bodies in taking the necessary steps to protect personal information that is being disclosed outside of Canada. It is our intention to have regulations, following completion of this legislation.

T. Stone: I appreciate the minister’s statement of intent around drafting regulations and bringing regulations forward. I would be remiss if I didn’t, as we’re talking about regulations, again, very specifically related to this section 21 and this new section, 33.1, that would be added to the act…. It leaves the door open to there being regulations or not.

I suppose I’ll move on, but it seems very strange, on a section as critical as the disclosure of personal information, the personal information of British Columbians outside of the country, that there is this wiggle room built into the legislation on this section.

The advice that the minister has received on this I think is correct in the sense of…. Every act has the enabling ability for regulations to be developed through order-in-council at a later date. But it is not a black or white thing. Regulations are….

This whole “if any” provision, leaving the door open, is not something that is attached to every single instance of potential regulation. There are many pieces of legislation in this province that require the development and the provision of legislation. Don’t leave the door open and say the minister “may” or such-and-such will apply “if any regulations are in place.”

There was a choice that was made here to make this as broad as possible, again, on a section that involves the disclosure of personal information outside of the country and regulations that, yes, are made possible to be developed, potentially, at a later date, pursuant to subsequent sections in this bill. But a choice was made to leave the door open for regulations to be developed or not developed.

I would ask the minister again: does she continue to stand by and defend the choice that she and her government have made to not be definitive, detailed and transparent with what the government’s intent is insofar as regulations that really need to be developed here, that will contain the nuts and bolts of the protections of the personal information, the disclosure of that information outside of Canada?

Does the minister, looking at it now, realize or think that the choice that was made perhaps wasn’t the best one, that it might have been better, in the interests of assuring the public, to actually be more specific here in not allowing for wiggle room, not allowing for the potential of regulations but, rather, requiring regulations?

[4:35 p.m.]

Hon. L. Beare: The last time this legislation was updated was ten years ago. I know the member will agree with me that a lot has changed over the past ten years. We certainly couldn’t have contemplated where we are today in the legislation when it was drafted ten years ago. Primarily, a lot has changed in the needs of British Columbians and how they’re accessing services. The member and I have talked a bunch about it — whether it be in accessing education or health care, or whether it be connecting with loved ones — and how we’re using these services.

My intention, as I’ve said to the member, is to have regulations upon completion of the legislation. This is an enabling clause that we have before us, and I do believe it’s the best approach to stand the test of time for the legislation — which may not be updated again, potentially, for another ten years.

T. Stone: Well, I would suggest that it’s actually not the best approach to leave so much in the dark. Again, not to recanvass what we’ve already talked about, but the statutory committee was completely bypassed in the crafting of this legislation and everything that’s in it and in bringing it forward. We’ve just canvassed a number of questions with respect to the Union of B.C. Indian Chiefs — and the apparent lack of engagement as required under DRIPA — with this legislation.

[4:40 p.m.]

The oversight, which we’ll get to, with respect to the commissioner, and the significant watering down of oversight…. I wouldn’t suggest that these are really good, positive steps forward in modernizing the legislation, as the minister has talked about. Nor would I suggest that it’s a good step forward to basically bring forward this extremely significant overhaul of the FOIPPA act without any sense of what the regulations are going to say.

The commissioner was very clear about that in his letter, which again, we went through pretty thoroughly in previous sections, and we’ll come back to it, I’m sure, in subsequent sections. He was very, very clear that he believes it’s a significant failing of process and the choices that the minister has made in the process insofar as regulations go, not following the lead of other jurisdictions that have often brought forward draft regulations for public exposure or, at the very least, if not provided to the public, were provided to their respective freedom-of-information and protection-of-privacy commissioners or equivalents for feedback, again, drawing upon the expertise of folks like our commissioner.

I’ll ask a specific question. Again, once these amendments, if this bill passes, are incorporated into the act, so much of bringing it to life, bringing the changes to life, will depend on the regulations. When will the regulations be approved by this government and be known to the public?

[4:45 p.m.]

Hon. L. Beare: My intention is to have the regulation in a timely basis shortly after royal assent, because this clause is important for protection of people’s privacy. So I thank the member for the question to clarify that that protection will be there in a timely manner following royal assent.

T. Stone: The minister just said shortly after royal assent. How does the minister define “shortly”?

[4:50 p.m.]

Hon. L. Beare: I know that the member knows there are processes internal to government that we have to follow for this. As I’ve said, our intention is to be as timely as possible. I’m saying to the member a.s.a.p. We’re going through the processes to ensure that this regulation is available shortly after royal assent.

T. Stone: Well, a.s.a.p., shortly, timely fashion — frankly, that’s ridiculous. Because this is one of the sections there’s, frankly, only…. We’ll talk about section 74 — if we ever get to it, based on the closure that the government has imposed. But there are only two sections that this government and this minister have decided to bring into force by regulation, because it’s a choice, as I said earlier. Every single section of a bill can be brought into force either through regulation or upon royal assent or at another date that’s specifically named in the legislation.

The government opted to provide for this section 21, which contains these changes to the disclosure of personal information outside of Canada. That’s the new section 33.1. The government opted to bring this section 21 and every other section in this bill, except for section 25 and section 49, by royal assent — the provisions of every one of these sections. They just automatically….

I know that the Chair probably knows this now, but that’s how the process works. We pass the legislation. Once it goes through committee, it goes into third reading. Then we pass the bill there. We pass the title. Then when the Lieutenant-Governor comes into this building and she nods, that’s the royal assent. It becomes the law at that moment.

The minister can’t sit here and actually give us a date when the regulations pertaining to the disclosure of personal information outside of the country…. She can’t give us a date as to when the regulations would provide, presumably, the protections of that personal information disclosed outside the country, other than to say that those regulations will come forth a.s.a.p. Or they’ll come forth in a timely fashion. Or they’ll come forth shortly. That’s not good enough.

This is a critical component of this legislation. Again, I sound like a broken record: the protection of the personal information, the disclosure of personal information outside of Canada.

An initial choice was made by this minister not to have this section come into force upon regulation, which would mean the cart would be where it’s supposed to be, which is behind the horse. If you pass the legislation, it’s regrettable that the ministry didn’t bring forward the draft regulations for public input or for commissioner input or whatever, but you pass the new provisions. Then the provision doesn’t come into force and become the law until the regulation underneath that section is developed and deposited.

[4:55 p.m.]

That’s how it’s often done. It’s rare to bring in a provision that immediately takes force or becomes enforceable. That really means there’s a big black hole, a big, big grey area, insofar as the regulations that bring that section to life are just not there until some later date after.

I would suggest it would have been a better approach to develop the regulations, include this section in the bill. The section passes. If the regulations are developed a week after the bill passes or two weeks or a month or whatever, at least there’s some congruency there — the coming together of the section and the regulation. That’s how it’s supposed to work.

Again, why is this section 21, which includes this critical component of the disclosure of personal information outside of Canada…? Why are the regulations pertaining to this…? Why does this section not become enforceable until the regulations are developed?

And I’ll ask one more time to the minister: can you please be more specific as to what time frame British Columbians can expect? I don’t think a.s.a.p. is an acceptable response when we’re talking about the disclosure of personal information outside of Canada.

Hon. L. Beare: The question has been asked and answered. It’ll be shortly after royal assent.

T. Stone: Well, with all due respect, I haven’t asked the question previously as to why the minister opted for this section and the multitude of other sections in this bill to come into force upon royal assent, as opposed to coming into force with respect to regulations that pertain to the section. I haven’t asked that question. She couldn’t possibly have answered it if I haven’t asked it.

I’ll ask the minister again. Why is this section 21 coming into force upon royal assent, which presumably is going to be tomorrow, without the regulations having been developed that provide the protections on the disclosure of personal information of British Columbians’ data outside of the country?

That’s the question. I’m asking for the minister, on behalf of…. A lot of British Columbians are, I think, going to come alive to this. Why did the minister opt to have this section become enforceable upon royal assent and not wait until the regulations were actually developed that fit into this section?

[5:00 p.m.]

Hon. L. Beare: Yes, we did answer this. This section is enabling, and it’s designed in the way it is to stand the test of time to ensure that the legislation is future-proof. But I want to draw the member’s attention to further on. In section 38, we do talk about ministries and public bodies must conduct a privacy impact assessment and do so in accordance with the directions of the minister responsible for the act.

There will be no disclosures outside of Canada without the PIA. The protection is in place for people. Their privacy is protected, and we’re ensuring that we’re protecting that information and that the regulation will be available shortly after royal assent.

T. Stone: Again, the minister has opted not to answer the question, which was….

Interjection.

T. Stone: No. With all due respect to the minister, she did not legitimately answer the question.

The Chair: Okay. Through the Chair.

[5:05 p.m.]

T. Stone: I just said, through the Chair, with all due respect to the minister, that she did not answer the question.

The question was: why did the minister decide that this section would become law upon royal assent as opposed to via the critical regulations which need to exist underneath it? That was the question. She didn’t answer that question, with all due respect, through you, Chair.

I still find it appalling that at this point in the discussion and the concerns that have been raised far and wide, including by the Union of British Columbia Indian Chiefs in their scathing letter yesterday, including in the Office of the Information and Privacy Commissioner’s letter and many others, the minister continues to sit here and think that it makes sense to respond with very straightforward, reasonable questions such as the timing of regulations that relate to the protection of information and the disclosure of personal information…. And all we get is “ shortly,” or “a.s.a.p.” or “in a timely fashion.”

Here are a few other…. Maybe the minister wants to say “presently” or “in a trice.” It doesn’t matter which words you choose. We’re looking for a tighter sense of the timeline here on when we can expect regulations pertaining to this section because of the sensitive nature of this section.

If the minister is not willing, through you, Chair, to give us a specific date, instead of saying “a.s.a.p.” or “in a timely fashion” or “shortly,” whatever other general term she wants to use, can she at least let us know what her objective is around the timeline? Will we have it within a month, within 30 days, within three months? What is the minister’s objective with respect to the timeline of the regulations that pertain to this section actually being developed, actually having been adopted by government through the OIC process and known to the public of British Columbia?

Hon. L. Beare: The question has been answered: shortly after royal assent.

T. Stone: The question has not been answered, and it’s a sad day. It’s another example of just the abuse of process, of the inability, the unwillingness, the intransigence on the part of this government and of this minister in being transparent about their intentions and answering direct questions. This is not how this process is supposed to work.

I’ll move on, because clearly, the minister refuses to tell British Columbians when they can expect to have regulations in place to protect the disclosure of their personal information when this government decides to ship that information outside of the country. Clearly, she’s decided that “shortly, a.s.a.p.” is a reasonable response.

The minister said, during debate earlier on this bill: “Our regulations that will be implemented will go above and beyond every other jurisdiction in Canada that doesn’t even have the power to put in regulations as we do right now or will with this bill. We are going above and beyond.”

We heard that phrase “above and beyond” over and over, but the minister has been reluctant to clarify what the regulations will actually say, what they will actually provide for. Again, the minister keeps saying that the regulations requiring privacy protection will go above and beyond, above and beyond.

Is she able to say this because the regulations have actually been developed and are in draft form? What gives the minister confidence that these regulations are going to be any better than anywhere else in the country?

[5:10 p.m.]

Have these regulations actually been developed? Are they being considered in government at the moment? Are they in a draft form somewhere?

Hon. L. Beare: As the member knows, and as I’ve answered previously in this debate, regulations are developed as part of a separate process which is not part of the legislation which we have before us here. I have said previously, and I commit to the member, that the regulations will add protections for British Columbians’ data.

[5:15 p.m.]

T. Stone: Well, the minister has introduced, many times in our discussion and debate on this bill, that work is underway on the regulations. And a news flash for you, Chair: the regulations that the minister is going to bring forward are going to be above and beyond any regulations that pertain to similar subject matter in any other province in the country. She has said that over and over in this debate, on previous days, on Bill 22.

Again, I think British Columbians have a right to know what underpins the minister’s confidence to the extent that she’s willing to go so far as to say that the regulations that she intends on bringing forward pertinent to this bill will go above and beyond similar provisions in other provinces in the country. What gives the minister the confidence to be able to say that?

[5:20 p.m.]

Hon. L. Beare: All throughout this legislation, I’ve been very clear to the member and to the House, and I think it’s important to restate that our government is committed to protecting people’s information. We’ve made it very clear that those protections are the top priority in this legislation. We have been operating this way for the past 20 months. We have already been doing this, and we already have this experience. We’ve been doing it safely since the ministerial order, and we heavily canvassed earlier in the debate on the ministerial order and how we’ve been operating.

People have had their privacy protected throughout that ministerial order. We’ve been providing services that people are counting on through the COVID-19 pandemic. This legislation and our updated data residency requirements bring us in line with the rest of Canada, who have been managing information safely without similar restrictions over the past decade.

I know how important it is for people to know that their privacy and their information are being protected, and we are committed to that.

A. Olsen: I think it’s important for British Columbians, as we’re assessing this, especially if we’re going to be qualifying and quantifying things, to understand what, actually, the meanings of those are. Are there definitions of “above and beyond” in this legislation so we can understand some context as to how far and to what extent the minister is going to take her actions?

[5:25 p.m.]

Hon. L. Beare: All throughout this bill and our debate, I’ve been outlining the ways this bill is going to benefit British Columbians, how it’s going to ensure that their privacy is protected, how their data is protected. It’s going to allow them to continue accessing services. We’ve talked about some of the pieces in the bill that are improvements to the bill that are giving those types of tools to British Columbians.

[R. Leonard in the chair.]

We’re implementing mandatory breach reporting to the Office of the Information and Privacy Commissioner. We’re implementing mandatory breach reporting to individuals.

[5:30 p.m.]

We’re strengthening the PIA requests for the broader public service. We’ve put in a new requirement for privacy management programs. We’re adding ministerial power to add subsidiary entities as new public bodies. We’re adding new offences for wilfully evading FOI, and there’s more.

These are all the ways we’ve talked about, throughout this bill, that we are improving protections for British Columbians. We’re improving their access to services, and we’re improving the legislation through these amendments.

A. Olsen: You know, I think the answer just kind of indicates the problem that we have. That was that the question that was asked previously, from the member for Kamloops South, was along the lines of looking for a specific answer about — the minister uses the terms and the words — “going above and beyond.” Now, listing out the things that the bill does, there’s no context to the question that’s being asked.

If the minister is going to stand up and suggest to the people of British Columbia — who we represent and we’re trying to ask questions on behalf of; our job here is to ask questions on behalf of all British Columbians — that she’s going to go above and beyond, presumably there’s some level of understanding of what “above and beyond” means.

You see, being specific is important. The language in this bill is very specific, for a reason. In fact, as we’ve drafted private members’ bills or amendments, the legislative drafters want us to be very specific, because when you’re not, there are all sorts of problems in how that bill gets applied or in what the expectations of British Columbians should be.

When the minister chooses to answer a question and use the terms “We’re going to go above and beyond” or “It’s going to be done shortly” or “It’s going to be done a.s.a.p.,” those are fine to use those words, but it’s not the level of specificity that should be included in a law-making process.

I would probably ask the question again of the minister but would probably not get a response about how she intends on actually implementing it or on what timeline she’s going to implement it, whether it be in the regulations or this law, and why one type of commencement was chosen over another.

It’s important that when these questions get asked and the minister decides to use language, we understand that that language actually has meaning. I think I’ve registered my frustration in this debate; I’ve registered it in previous debates. The fact of the matter is that it’s really felt that the ministers, especially in this last week, are just trying to get to the end of the day, and that’s it. It’s really doing a disservice to this democratic process, the democracy that we’ve been elected to. Anybody who sits back and watches this sees the affront to democracy that’s occurring in this last week.

So I’d just encourage the minister, if she is going to go above and beyond, to have and to provide some indication to the people of British Columbia, who this law is going to apply to, as to when, where, what and how those words actually…. What do they mean? And how are they going to be applied?

Hon. L. Beare: As I answered a few minutes previously in the debate, regulations are developed as part of a separate process which is not part of this legislation we have before us today. I have previously committed, all throughout this legislation, to ensure that British Columbians’ information is protected.

[5:35 p.m.]

B. Banman: As I’m sitting here, I’m looking at a recent Ipsos poll that said that 73 percent of respondents across the province were opposed to specific changes proposed in Bill 22, 61 opposed requirements requiring people to pay a fee for freedom of information, and 73 opposed government bodies storing their personal information outside of Canada. I can’t help, as I’m sitting here….

I’m sorry, but the minister’s response, sadly, reminds me of a saying that came from Buzz Lightyear: above and beyond, a.s.a.p. It’s comical if it weren’t dealing with people’s privacy and information.

The member for Saanich North and the Islands has mentioned a few things about the whole process and his frustration. The Privacy Commissioner has mentioned a problem with the process. Members of the special committee have mentioned a problem with the process.

Now we have the latest. The Union of British Columbia Indian Chiefs, for a second time, have expressed a problem with the process. They’ve all expressed, as did 73 percent of British Columbians…. What they’re really saying is: “We have a trust problem. We do not trust this process.”

When the minister stands before us and uses words like “above and beyond” and “a.s.a.p.,” I don’t think it’s too much to ask for British Columbians to have an idea when their data can be protected. Maybe it’s a little personal to me because I’ve just seen what a breach can do and what that does with the flood waters in an entire community. And this is very similar. Once this data is breached, unlike the Sumas Prairie, we can’t suck it back. We can’t get it back.

This minister chose to do the process this way, not the citizens of British Columbia. So I would respectfully ask the minister: are there draft regulations already around? Will those draft regulations be talked with, with the Privacy Commissioner and the Union of British Columbia Indian Chiefs? And when can we, respectfully, ask for that process to be anticipated, estimated to be done?

This becomes law, as we’ve heard, upon royal assent, probably tomorrow. I don’t think it’s too much to ask, to say: “We expect it within six months.” I don’t think it’s too much to ask to have an answer that we have draft regulations already. “Yes, we’re going to discuss them with the Privacy Commissioner and the Union of British Columbia Indian Chiefs, and we expect it within approximately this time period.”

“Above and beyond” just is not good enough, and it really is becoming comical.

Hon. L. Beare: Chair, this question was asked and answered.

I request a five-minute recess, please.

The Chair: Okay. This committee will recess for five minutes.

The committee recessed from 5:39 p.m. to 5:46 p.m.

[R. Leonard in the chair.]

B. Banman: As we mentioned a moment ago, the minister is half right. The question has been asked. Sadly, it hasn’t been answered.

Above and beyond, a.s.a.p., is not really an answer to asking whether or not there are draft regulations that are in the preliminary stages and, not getting an answer to that, whether or not the Union of British Columbia Indian Chiefs and the Privacy Commissioner and, heaven forbid, the actual special committee that has been put in place to deal with exactly these such things will be consulted. The minister has not been transparent in her answers.

I think the minister knows full well that there’s a game plan. I think the minister has probably an idea of a timeline as to when those regulations are expected to be done but, for whatever reason, is hesitant to answer those questions. I find it disturbing.

I think this is about people’s most private information. It includes their health information. It includes the collecting of their information. I go back to 73 percent of British Columbians have a concern with their data being stored outside of Canada.

My question is: does the minister think that 73 percent of British Columbians are wrong?

[5:50 p.m.]

Hon. L. Beare: We’ve outlined very clearly, in this House, the consultation that has been done to get to where we are in this bill — a very balanced approach.

The member is referencing a third-party survey not done by government. We have surveys here in front of us. We have round tables that were done by government. We have consultation with the public. We’ve taken all that feedback, all that consultation that has been done since 2018, and have put it into the draft regulations that we have before us today. I think it’s important for the public to know that we’ve been listening.

There are strong voices on all sides of this debate and of this legislation. Our job as government is to balance those voices and put forward legislation that we have before us today, legislation that protects people’s information, legislation that allows people to continue accessing the services that they’ve come to count on during COVID-19. That’s what we’re doing with this legislation.

B. Banman: Well, respectfully, I would say that 73 percent of British Columbians disagree. Clearly, the Union of British Columbia Indian Chiefs disagree, and the Privacy Commissioner disagrees, respectfully.

We’ve covered an awful lot about social media comments. My question now goes: for youth in care — or youth, period — how will their social media interactions be specifically protected by this act?

[5:55 p.m.]

Hon. L. Beare: I think we need a little clarification from the member on what he is seeking here. Previously, the member and I discussed — in 33(2)(w) — social media. That was surrounding disclosure. So I’m unclear as to what…. We had that full discussion on how it’s disclosure, and it’s not collection of information in that sense. We talked about it previously.

Is the member referring to that section, and is that what the member is trying to ask?

B. Banman: Well, in this act, there’s reference to both the collection…. In clause 21, there’s mention of compiling the data for the purpose of engagement, and then there’s data-linking, which is also part of this. It’s mentioned in it.

I guess my question is: if I’m a parent now and a youth in care of government is now interacting with one of the government websites — or I have a minor that’s my child, let’s say, that is now interacting with government — what will be there to protect that minor? What are the purposes of collecting…? How will this government know whether or not the data and the engagement they’re collecting is from a minor or not?

Hon. L. Beare: We discussed, and I want to make it clear to the member, that the bill does not change what information is collected, used and disclosed on social media. We thoroughly canvassed that. That remains intact here in the bill. The only change that has been made, with respect to the bill, regarding social media is to remove the definition, because the current definition lists sites — for example, Myspace. So it’s removing that outdated list of a definition.

The bill does not change what’s currently in practice right now. We’ve thoroughly canvassed disclosure versus collection previously.

B. Banman: I just want to go over something again. The member for Saanich North and the Islands asked the question: can a public entity, a public body, store data in any country in the world, once the government gets its way and repeals this section, in any jurisdiction in the world?

[6:00 p.m.]

I guess what we’ve seen from the speculation tax with regards to the privacy impact assessment is that there was a gap. It was not executed exactly perfectly, I think we can all agree. It was completed before the rollout of the new programs.

How will the minister ensure that the privacy impact assessment will have adequate safeguards, when it’s being done behind closed doors and behind the scenes?

Hon. L. Beare: I know we’re going to get into it in a later section with the member, but FOIPPA — and it’s coming up in a later section — does require that privacy impact assessments be conducted during the development of a proposed initiative providing that protection, and that’s not changing with this bill.

The Chair: Okay. Again, on clause 21 as amended.

B. Banman: On clause 21. Thank you, Madam Chair.

Would the minister agree with the statement that a privacy impact assessment is a legal responsibility of government?

[6:05 p.m.]

Hon. L. Beare: This is all jumping us up into section 69. But just in the interest of time, I will answer this. Maybe we can continue on PIAs in section 69.

But as I’ve said, FOIPPA, the legislation, requires privacy impact assessments to be conducted during the development of a proposed initiative, and that’s not changing under this bill.

I’ll read what is in 69, for the member. The requirement hasn’t changed, but there’s some language change in here. Subsection 69(5): “The head of a ministry must conduct a privacy impact assessment and must do so in accordance with directions of the minister responsible for this Act.” And then we have 69(5.3): “The head of a public body that is not a ministry must conduct a privacy impact assessment and must to do in accordance with directions of the minister responsible for this Act.”

Again, FOIPPA does require that assessments be done and conducted during the development of a proposed initiative.

The Chair: Member, just a reminder again to ensure that the questions are relevant to clause 21 as amended.

B. Banman: Absolutely. Thank you, Madam Chair, for that advice. I would say that FOIPPAs are connected when we’re collecting data. That privacy impact assessment is directly related to this particular clause, but thank you for that.

I’m confused slightly by the minister’s answer. Is that a ministerial regulation, or is it a legal requirement?

Hon. L. Beare: What I just read from section 69 to the member is clearly from the law in section 69.

B. Banman: Again, when we go back to the fact that the cart got before the horse with regards to the speculation tax, where clearly there was a misstep in that process, it would appear to some as if this has been downgraded from a legal requirement to a policy request, a policy then, policy process.

Moving forward, how robust will the privacy impact assessments be when clearly there was a misstep in the past?

[6:10 p.m.]

Hon. L. Beare: I have answered previously in this debate — and very specifically, around these questions — that regulations are developed as part of a separate process, which is not part of the legislation we have before us today.

B. Banman: Madam Chair, as I recall hearing just a moment ago, the minister did say that it is a legal requirement to do a privacy impact assessment.

I guess the question is…. Let’s say that under clause 21, as we’re gathering this, if this is done incorrectly — or in an inappropriate time, even, such as was done with the spec tax — what methods of redress are there if there’s a flaw in that privacy impact assessment process?

The Chair: Member, I’d just like to refer to Parliamentary Practice, chapter 11, section 5.1. It refers to Standing Orders 61(2) and 43, which require that debate “must be strictly relevant to the item or clause under consideration.”

I’d just request…. It says then that the Chair may direct a member who “persists in irrelevance or tedious repetition…to discontinue speaking.” I’ve let you ask the question three times. I’d like us to be able to remain relevant to clause 21 as amended.

B. Banman: Thank you very much, Madam Chair.

Let me ask this, then: is a privacy impact assessment required for portions of clause 21?

[6:15 p.m.]

Hon. L. Beare: Section 21 does not make reference to a PIA. I did read the legal requirements out for the member, which come in section 69. I have said to the member during this debate that details of PIAs are done through regulation, which is a separate process outside of this legislation.

B. Banman: Now I’m really confused. Through you, Madam Chair, to the minister, a moment ago she said a PIA was a legal requirement. And now did she just misspeak when she said it was a regulation?

Hon. L. Beare: The legal requirement is outlined under section 69. The details are part of regulation, which is part of a separate process.

B. Banman: I’ll move on and save part of that, I guess, for 69, unless the minister is willing to answer the simple question: what methods of redress are there if there are flaws in a privacy impact assessment?

The Chair: Member, that question is not relevant to this clause.

B. Banman: As you wish, Madam Chair. I will ask it later.

In 33(3)(h), gathering of information for statistical research, while it’s good to see that there is oversight by the commissioner and the head of public bodies, there’s also language that protects an individual when it comes to data linking. Again, that’s a positive step.

Can the minister please provide a specific example of what couldn’t be done before and what can be done now with this section?

Hon. L. Beare: This section hasn’t changed. All the existing abilities that were there before are there now.

B. Banman: To the minister, is she 100 percent certain that there has not been any change of what could not be done before and can now be done with this section?

[6:20 p.m.]

Hon. L. Beare: As I said, this doesn’t enable any new disclosures or data-linking ability. We have renumbering. We have grammatical changes. I’ll read out one line, just for an example, to the member. It used to be 35(1)(a).

That was: “the research purpose cannot reasonably be accomplished unless that information is provided in individually identifiable form or the research purpose has been approved by the commissioner.”

That’s now 33(3)(h)(i): “the research purpose cannot be accomplished unless the information is disclosed in individually identifiable form, or the research purpose has been approved by the commissioner.” Minor changes — numbering and grammatical changes.

B. Banman: In subsection 33(3)(h), it’s a fairly massive change. We’ve taken some legislation, and this is all brand-new. I’m looking at the proposed bill. Would the minister please like to comment on subsection (iii): “any data-linking is not harmful to the individual the information is about and the benefits to be derived from the data-linking are clearly in the public interest”? Was that data-linking existing prior?

Hon. L. Beare: Yes, that existed prior. It’s not a new section. As I said, it has moved number, and then there are some changes in it. If I’m holding the act as previous…. We have the amended legislation before us. In the previous act, it is: “Disclosure for research or statistical purposes.” That’s 35, and then there’s subsection (1)(a), (a.1), (b), (c)(i), (ii), (iii), (d); subsection (2); and it goes on. So no, this is not new. It’s already existing in the act.

B. Banman: Under 33.1, this becomes now the only protection for information disclosed outside of Canada. That’s my understanding. Would the minister please explain what is the rationale to repeal the data residency provisions in the current act and, more importantly, make that beyond the oversight of the Privacy Commissioner?

[6:25 p.m.]

Hon. L. Beare: Just for clarification, there is no change to the commissioner’s office regarding oversight on this matter. I’m wondering if the member wants to clarify or dive deeper into his question and explain what he’s looking for.

B. Banman: I guess, then, let’s start with: what’s the rationale to repeal the data residency provisions in the current act?

Hon. L. Beare: The member and I have actually had a lot of chance to talk about this since this bill was tabled six weeks ago. We’ve talked about how important it is to listen to what’s going on in people’s lives.

[6:30 p.m.]

We’ve talked about how people want to be able to continue accessing the services that they’ve had under COVID, like telehealth, like online education. We’ve talked about how businesses and universities and health authorities have all repeatedly told us that our data residency rules are out of date, and it’s stopped them from being competitive and responsive to the needs of British Columbians.

We’re listening. We have this legislation before us. B.C. fell behind, and this legislation is bringing us in line with the rest of Canada, ensuring that we’re able to deliver the tools and services people need, while continuing to protect and manage their information safely.

The member and I talked about how, when the pandemic hit, the world changed and how important it was for British Columbians to be able to access services. We talked about being able to conduct FaceTime visits with your doctor or your nurse. We talked about being allowed or having the ability for Google classrooms so that our kids could move to online learning during the pandemic. We put in that temporary ministerial order, which allowed us to meet those needs.

I know — we’ve talked about this also with the member — that all sides of the House will agree with me that these services were essential over the past 20 months. It’s how we were able to continue providing those services to British Columbians. It resulted in good outcomes. It resulted in being able to provide services people count on.

Combined with all the input we’ve heard from the sectors, like we outlined — like the university sector, the tech sector, the health sector — we need to update our legislation, which hasn’t been updated in over a decade. So it’s time to listen to what’s going on in people’s lives. It’s time to be able to give them access to services that they need. That has resulted in good outcomes during COVID-19.

That’s what we have in the legislation before us. I know the member and I have talked about this. I’m very happy to address it again, because I think it’s important for people to realize what this allows — the ability to be competitive, the ability to be innovative and, most importantly, the ability to be able to access services that people so greatly count on right now.

B. Banman: I think that much of what — or some of what, would be more accurate — the minister has just said British Columbians would agree with. The issue we have before us is, I think, the rapidness in which this came through and the lack of what many consider to be proper channels. The Privacy Commissioner has talked about it. The Union of B.C. Indian Chiefs has talked about it — that consultation that’s important.

I do thank the minister for going through that. We knew that we were going to probably touch base on some things, because I think it took us a while to get through the first few sections, even.

The commissioner has sent a rather long, lengthy letter with a lot of concerns, one of which is about leaving any potential protections to regulations. Does the minister share the commissioner’s concerns with leaving these protections to regulations?

[6:35 p.m.]

Hon. L. Beare: Just for the member, there are protections in this legislation. I want to draw the member’s attention to section 30, which we canvassed. I’ll read it into the record here: “A public body must protect personal information in its custody or under its control by making reasonable security arrangements against such risks as unauthorized…collection, use, disclosure or disposal.”

So we have the legislated protections embedded into the legislation, in section 30. There also will be additional measures through the regulation process, which we’ve already heavily canvassed here, as a separate process outside the legislation, but I did want to draw the member’s attention to section 30, where that is outlined — the protections within the legislation.

B. Banman: If, for instance, the commissioner finds out that the data that’s going to be stored is in an area of the world that they have an extreme problem with, that they think is a hazard to Canadians’ private information, which is now going to be stored off our soils, does the commissioner have the authority to basically say: “No, you may not store it there”? Or does government have the ability to store it anywhere they wish in the world?

[6:40 p.m.]

Hon. L. Beare: The requirement for protection is in section 30, protection of personal information: “A public body must protect personal information in its custody or under its control by making reasonable security arrangements against such risks as unauthorized collection, use, disclosure, or disposal.” The commissioner has the power to adjudicate whether the public body has met this requirement under section 30. The upcoming Part 5 outlines all the commissioner’s authorities later on in the bill.

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

Motion approved.

The committee rose at 6:43 p.m.