1995 Legislative Session: 4th Session, 35th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, JUNE 8, 1995

Afternoon Sitting (Part 1)

Volume 20, Number 23

[ Page 15217 ]

The House met at 2:08 p.m.

The Speaker: I would just like to take a second to thank the Deputy Speaker for serving the House during my absence. And I would as well like to thank all members for their cooperation, and I'm sure it was very much appreciated. Anyway, it's nice to be back, hon. members.

D. Lovick: I want you to know that this welcome from me to you probably comes with more passion than from anybody; nice to see you back, Mr. Speaker.

On your behalf, I would like to make a couple of introductions. First, I want to welcome a group of students with their teacher who are here from Bothell, Washington, from Woodmore Elementary School: Ms. C. Elsemore, their teacher, and a group of students here visiting with us today. I hope the House will make them welcome.

I understand as well that there are two other groups of visitors from the United States who are perhaps in the precincts: Ms. Hendrick from Satsop Elementary School in Satsop, Washington, and Ms. D. Allaway from Glenwood Elementary in Glenwood, Washington, visiting with students. Again, I would ask my colleagues to join me, please, in making our American guests feel welcome.

J. Pullinger: It is my real pleasure today to welcome to the House three people: two students from Cowichan Secondary School and their instructor. What's really special about them being here today is that they are here because they have won the national championship of the automotive troubleshooting competition. That, of course, is where you have a car with all sorts of problems and you fix it, which is just amazing to most of us. These two young men have won the national championship, and they are going on shortly to compete in the international championship.

I would ask the House to welcome today Ryan Devoe from my colleague's constituency, Todd Wratten from mine, and their instructor, Mr. Tom Gavaghan. Would you please welcome them to the House, and in that welcome wish them the very best in the international championship.

The Speaker: The Leader of the Third Party.

J. Weisgerber: Thank you, Mr. Speaker. Not wanting to be one to ever question the word of the Deputy Speaker, but indeed, there are many of us here who are delighted to see you back in your chair.

It's a real pleasure for me today, on behalf of the member for Okanagan West as well as myself, to introduce to the House the former Premier, Rita Johnston, who has joined us on the floor today. Joining Rita today are two former members of her staff. They're in the gallery. Would you also extend a warm welcome to Marguerite Leach, a former executive assistant, and Phyl Reynolds, who was Rita's constituency assistant.

Hon. P. Priddy: It's my pleasure to welcome and introduce to the Legislature today a woman who, as they would say in her province, comes from away. When I lived and worked in Nova Scotia and was active in the community and not thinking about politics, I did ask about women who were active in the community and who were good role models for women who wanted to be active and wanted to make a difference.

At a soccer game my son was playing at one day, someone said to me: "You should meet the mother of one of the other soccer players." Indeed, Alexa McDonough is a woman who has been an excellent model for both women and men in Nova Scotia, both in the community and in politics. I would ask the House to please make welcome the Nova Scotia member from the riding of Halifax Fairview, Alexa McDonough.

L. Reid: I would ask the House to please join me in welcoming 50 grade 10 students who are visiting today from R.C. Palmer Jr. Secondary School in the riding of Richmond East. They are accompanied by their teachers: Larry Nelson, Scott Ferguson, Sylvia Grafton and Valerie Whyte.

I would also like the House to recognize the presence in the galleries today of a dear friend of mine, Karen Legeer, who is actually a constituent of my dear colleague from Surrey-White Rock. I would ask the House to please make her welcome.

R. Kasper: I too would like to congratulate Ryan Devoe of Mill Bay and Tom Wratten and, in particular, their instructor Tom Gavaghan. This is Tom's second team of students that he has managed to assist in reaching the national championship in this motor troubleshooting event. I would ask the House to join me in wishing them every success at the internationals.

F. Gingell: On behalf of the member for Saanich North and the Islands, I wish to recognize a group in the gallery that are officially known as the Australian Rotary Group Study Exchange. They're all from New South Wales and Queensland. Their team leader is Richard Crandon. Other members are Greg Yeates, Mark Trotter, Des Lacy and Lew Verney. They are accompanied by hosts Jack MacAulay and Lorne Harris of the Sidney -- that's Sidney in British Columbia -- Rotary Club. I ask all members to join me in making them welcome.

[2:15]

R. Neufeld: Welcome back, Mr. Speaker. It's not too often that I have the opportunity to introduce someone in the House from my constituency of Peace River North, but it's my pleasure today to introduce Dorene Callison, a constituent in Peace River North who also works with me in my constituency office. She's in the gallery today, and I'd like members to make her welcome.

Hon. C. Gabelmann: I'd like the House to make welcome somebody who is here from even further away than North Peace River. We have a visitor with us from the town of Zhukovsky in Russia. This is a town near Moscow, I understand. Our visitor is Mr. Alexander Kiritchenko. Mr. Kiritchenko is the head of the consumer market department in the mayor's office in Zhukovsky. He's participating in an internship program called Research and Training for Reform, which is administered by the Association of Universities and Colleges of Canada. This internship program will have Mr. Kiritchenko spend two months in Canada.

He's currently in the Ministry of Attorney General, studying the British Columbia system of preparing laws and regulations....

[ Page 15218 ]

Interjections.

Hon. C. Gabelmann: We need all the help we can get.

Hon. Speaker, he's accompanied in the gallery today by legislative counsel officer Ken Chutskoff.

J. Dalton: I have two visitors to introduce. First, a lifelong friend, literally: Bruce Campbell, who, by the way, is not related to our leader, but I'm sure he wouldn't mind being. Bruce is a constituent of the Minister of Forests, and sitting next to Bruce is a constituent of mine, Mr. Mark Reder. Mark is an employee of the British consulate, and is over here to talk about fast ferries. So would the House please make them both welcome.

D. Mitchell: I'd like to make an introduction as well. Hon. Speaker, just to help update you on what has been going on in B.C. politics while you were out of the province, I'd like to introduce to our precincts a visitor who has been here over the last day or so. Mr. Greg Lyle has returned from Ontario, where he was helping the Ontario Conservative Party with their provincial election campaign, which concluded today. Mr. Lyle, who has been in the precincts over the last day or so was here to report to the Liberal Party....

Interjections.

The Speaker: Order, please.

D. Mitchell: Apparently Mr. Lyle was here to help the leader of the Liberal Party draft his telegram of congratulations for the election today on behalf of the leader of the Liberal Party, although it is to the Conservative Party in Ontario, hon. Speaker -- you figure it out.

Interjections.

The Speaker: Order, please. As all hon. members know, the purpose of introductions is simply for that purpose and not for any other opportunities to make speeches.

The hon. Administrator will be entering the precincts momentarily, and I ask hon. members to please keep their seats.

His Honour the Administrator entered the chamber and took his place in the chair.

Law Clerk:

Budget Measures Implementation Act, 1995

Grains and Oilseeds Revenue Protection Plan Trust Fund Act

Grazing Enhancement Special Account Act

Securities Amendment Act, 1995

Mountain Resort Associations Act

Growth Strategies Statutes Amendment Act, 1995

Real Estate Amendment Act, 1995

Miscellaneous Statutes Amendment Act, 1995

Forest Practices Code of British Columbia Amendment Act, 1995

Home Owner Grant Amendment Act, 1995

Tobacco Sales Amendment Act, 1995

Miscellaneous Statutes Amendment Act (No. 2), 1995

Consumer Protection Amendment Act, 1995

Vancouver Stock Exchange Amendment Act, 1995

Cooperative Association Amendment Act, 1995

Clerk of the House: In Her Majesty's name, His Honour the Administrator does assent to these bills.

His Honour the Administrator retired from the chamber.

Introduction of Bills

ROYAL ROADS UNIVERSITY ACT

Hon. D. Miller presented a message from His Honour the Administrator: a bill intituled Royal Roads University Act.

Hon. D. Miller: This act establishes Royal Roads University, a degree-granting institution that will ensure that British Columbians have the skills necessary to compete in a global economy. The purposes of the university as set out in the act are: to offer certificate, diploma and degree programs at the undergraduate and graduate levels in solely the applied and professional fields; to provide continuing education in response to the needs of the local community; and to maintain teaching excellence and research activities that support the university's programs in response to the labour market needs of British Columbians.

The act provides for a corporate governance model to enable the institution to respond quickly to changing industry and community needs. The governance model includes a board of governors, the president, who is the chief executive officer of the university, the program and research council, and the academic council. The board of governors and the president will have the duties and powers of the board of governors and the senate under the University Act. The program and research council will advise the board, and the academic council will advise the president.

Hon. Speaker, I'm not sure if the bill was drafted by our friend from Russia, but I move that Bill 49 be read for a first time.

Bill 49 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

Oral Questions

ELECTRICITY SALES TO U.S.

D. Jarvis: According to the 1994 report of B.C. Hydro, over the past five years B.C. has received $95 million to $172 million from electricity sales in the U.S.A. The bungling of the Minister of Employment is throwing that in jeopardy now. Bonneville Power has responded to the minister's bluster by threatening B.C.'s access to their transmission lines. My question is to the Minister of Employment. During Tuesday's press

[ Page 15219 ]

conference, why did the minister forget to inform British Columbians that annual electricity sales in excess of $100 million were now being threatened by Bonneville Power?

Hon. G. Clark: Actually, Mr. Speaker, the member is incorrect. For 30 years, Bonneville Power has restricted access to the American marketplace. Now, as a result of deregulation, and as a result of B.C. Hydro joining the deregulated utilities of the Pacific Northwest, we are going to have access for the first time to export surplus power to the United States. That's good news for jobs in British Columbia; it's good news for development. What has happened is that Mr.

Peterson has responded by saying that rather than give the control of our reservoirs to Bonneville when they want to store water during the fish flush, when they have to pump water through uneconomically in the United States, now Powerex can buy the power on the open market at very cheap prices, store the water ourselves, take back control of our reservoirs, and export in the United States when the price is higher. That gives us more control than we've had in the past. It means we'll make more money on export sales in the future.

The Speaker: Supplemental, hon. member.

D. Jarvis: Yes, supplemental. But first of all, we have to get that power down to the United States, and they control the transmission lines. In any event, we wouldn't be in this mess if the NDP didn't try to spend the $250 million that they didn't have. According to the B.C. Energy Council, Bonneville Power controls 80 percent of the transmission lines in Washington State, as I said. So we risk losing transmission line access to western United States power. My question to the Energy and Mines minister....

Interjections.

The Speaker: Order, hon. members.

D. Jarvis: What plans does the minister have for selling excess Columbia Treaty power to the United States, in the absence of commercial agreements with the U.S.A.?

Hon. A. Edwards: Again, I remind the member that any Columbia River Treaty power we have begins to come back in 1998 and works in then. We have a considerable amount of time to make arrangements for dealing with that power. Under the agreement, we arranged that it can either come back or be sold in the U.S. We expect that whenever we do reach agreement, it will be the same agreement -- the same outcome.

COLUMBIA RIVER NEGOTIATIONS WITH BONNEVILLE POWER ADMINISTRATION

W. Hurd: A question to the Minister of Employment and Investment. With each passing day it's becoming obvious that the Minister of Employment and Investment is floundering in his get-tough, Rambo policy with Bonneville Power. At his press conference this week, the minister assured British Columbians that we wouldn't lose a dime by killing the storage agreements with Bonneville. But his hand-picked president of Powerex, Ken Peterson, has warned that Hydro stands to lose $5 million in revenues. It's a wash, at best.

As the member for North Vancouver-Seymour said, we could lose long-term energy contracts in the United States. Will the minister put a cork in the rhetoric, fire his NDP negotiators and make sure that the power comes back to British Columbia in 1998, as it is required to do under the Columbia River downstream benefits treaty?

Hon. G. Clark: We don't have to make sure the power comes back as it is required to do in the treaty; it is required to do that under the treaty. Bonneville Power is required to build a transmission line for about $150 million (U.S.) through the American Okanogan Valley, at great environmental consequences, all to provide power to the United States. The power comes back, the asset is still ours and it's worth billions of dollars to British Columbia. The challenge is to maximize the benefits for British Columbia, and if the members think that we should now roll over to Bonneville and allow them to dictate to us the terms, they're wrong. I don't believe British Columbians want us to roll over.

[2:30]

I can tell you what Ken Peterson said. Ken Peterson, the CEO of Powerex and not an NDP hack, has worked in this industry for many years. He has said he was misquoted and misrepresented with respect to what he said. I want to read it. It says: "It is no disadvantage to British Columbia initially or otherwise to cancel these storage agreements with the BPA. Powerex...."

Interjections.

The Speaker: Order, hon. members. Would the minister please wind up his statement.

Interjections.

Hon. G. Clark: I just want to quote Mr. Peterson: "Powerex will take the opportunity to earn greater revenue by buying energy in the spring when prices are low and reselling that energy when prices are considerably higher in the fall and winter."

The Speaker: Supplemental, member?

W. Hurd: All I can say is that pride and vanity come before a fall, and it appears that British Columbians are going to be the fall guys in this. The minister is now telling us he wants to bypass Bonneville and deal directly with the U.S. State Department like some international diplomat. Let's get real here. The federal government is Bonneville's biggest creditor, and they are all Republicans, not Democrats. Will the minister fire his handpicked negotiators and hire some real experts to ensure that the downstream benefits are returned on

schedule in 1998, or is this minister determined to put his bruised ego ahead of the interests of British Columbians?

Hon. G. Clark: I think it's reprehensible that day in and day out in this House the members of the Liberal Party attack individuals working on behalf of British Columbia, experts in the field and people who cannot stand in this House and defend themselves. We have an outstanding team, and everybody knows we negotiated a good deal with Bonneville Power. Even Bonneville Power admits we negotiated a good deal with Bonneville Power, and that's the argument they're

[ Page 15220 ]

making in trying to renege on the deal. They can't renege on an international treaty. We have all the cards in this case, we have all the stroke, and it would be ridiculous and irresponsible for the government of British Columbia to crawl on its belly and suckhole to Bonneville Power when we have all the cards, when it's our power and our reservoirs, and that power returns to British Columbia. We're not going to shortchange future generations for short-term benefit. We're going to maximize the interests of British Columbians in the future.

Interjections.

The Speaker: Order, please.

LEGISLATIVE PRECINCTS STUDY

J. Weisgerber: My question is to the minister responsible for BCBC. The legislative precincts study recommended sweeping improvements that would involve considerable capital expense. Can the minister confirm that the decision has been made to ignore all of the recommendations in that study until after the next election? And can the minister tell us who made the decision not to implement the recommendations of the study?

Hon. U. Dosanjh: I'll take that question on notice and get back to the Legislature.

The Speaker: The question is taken on notice, hon. member. Do you have another question?

J. Weisgerber: I have a new question for the minister. Is the minister responsible aware that a memo was sent out from BCBC indicating that Chris Chilton was the one who made the decision not to go ahead with improvements to the legislative precincts? My question is: in addition to renovating his own offices, why in the world would Chris Chilton be making decisions like that regarding the precincts that we are in here today?

Hon. U. Dosanjh: With respect to Mr. Chilton, two removable walls were removed. The cost of renovations was no more than $2,500. The Ministry of Health is paying rent on the previously empty space that's now being used in the cabinet planning secretariat by Mr. Chilton.

The rest of the question I'll take on notice and get back to the member.

TSATSU SHORES DEVELOPMENT

F. Gingell: Mr. Speaker, as bulldozers moved dirt yesterday, the Tsawwassen Indian band announced on TV -- and my question is to the Minister of Environment -- their intention to proceed with the Tsatsu Shores development without agreement from Delta to supply water or provide sewage disposal services. Chief Sharon Bowcott stated they will dig artesian wells and truck the sewage out. My office is swamped with phone calls and letters, raising serious concerns about the process and the environmental propriety of this development.

Does the minister share my concerns and those of the citizens of Delta, and has her ministry contacted the Department of Indian Affairs and Northern Development to make sure these concerns are known to federal officials?

Hon. E. Cull: Hon. Speaker, I'll take that question on notice and get back to the member.

The Speaker: The question is taken on notice, hon. member. Have you further questions?

TSATSU SHORES DEVELOPMENT AND ABORIGINAL GAMING POLICY

F. Gingell: My supplemental question is to the Minister of Government Services.

The Speaker: A different question, hon. member?

F. Gingell: It is a different question; if everyone listens, they will discover that.

In the same news clip, Chief Sharon Bowcott expressed disdain for local government, and stated an intention to proceed with other development on their reserve if they so decide. One of the options she mentioned was a casino. Does the Minister of Government Services...? Seeing that the chief sits on the aboriginal gaming implementation committee, can the minister explain why a member of his committee has made statements so directly contrary to his clearly enunciated public policy commitments?

Hon. U. Dosanjh: Let me remind the members of this Legislature and the people of British Columbia that in the context of gaming one law applies to all British Columbians. Let me restate that there will be no Las Vegas-style casinos allowed in British Columbia. Let me further say to you that there is a final announcement on gaming direction yet to come.

FAMILY MAINTENANCE PAYMENTS ENFORCEMENT

R. Neufeld: My question is for the Attorney General. In April the government proclaimed an amendment to the Family Maintenance Enforcement Act that allowed a notice of attachment to be issued against anyone who was not in arrears but who had missed payment some time in the past. That's like giving a credit card company the right to garnishee the wages of anyone who has ever missed a payment. If the person is making their maintenance payments and is not in arrears, why should they have an attachment placed against them?

Hon. C. Gabelmann: The member will recall that we had this debate when the legislative changes were made -- I believe it was in the 1994 session -- and that was the proper place for the debate. The member's position lost during that debate, and the government's position prevailed.

The Speaker: Supplemental, member.

R. Neufeld: Again I say that in April this government proclaimed the change. The notice of attachment costs the payer a fee of $35, and it is in force for five years with little chance of removal. It should be a measure of last resort aimed at chronic delinquents, not an unfair burden to those who are meeting their maintenance payments. Will the government now commit that no one who is current in their maintenance payments will have an attachment placed against them?

[ Page 15221 ]

Interjections.

The Speaker: Order, please, hon. members. Please proceed, minister.

Hon. C. Gabelmann: The family maintenance enforcement program is designed to ensure that women and children are looked after financially as best we possibly can. We need that particular enforcement provision. The answer is no to the member's question.

CLOSURE OF OAK STREET BRIDGE

D. Symons: My question is to the Minister of Transportation and Highways. The closure of two lanes of the Oak Street Bridge for three months begins this Saturday. B.C. Transit was not notified until April 7 of the ministry's intention to close two lanes -- not enough time to arrange for more buses. Why wasn't more lead time given to B.C. Transit so that sufficient public transit could have been in place to give commuters an attractive alternative to the frustration of exhaust fumes caused by these long delays?

Hon. J. Pement: Again I will say that the bridge is being closed to two lanes because of major repairs to be done to the bridge. I believe that it is important that we have a good infrastructure for our citizens to access. We had discussions with B.C. Transit with regard to bus services; they are putting new buses on. We have the Jack Bell Foundation, which is working well towards van-pooling. We have shown and are publicizing routes. We are putting out pamphlets. We are on the radio talking to people with regard to the closure. We know it's going to be difficult for the commuter.

Nevertheless, we have a system that we have to keep in repair, and I'm pleased that we have the funding to do so.

The Speaker: The bell terminates question period, hon. members.

Hon. C. Gabelmann tabled the annual report for 1994-95 of the Law Reform Commission of British Columbia.

Presenting Petitions

K. Jones: I ask leave to table a petition.

Leave granted.

K. Jones: I table this petition on behalf of 90 petitioners from the lower mainland. The petition is:

"We, the undersigned, wish to register our profound opposition to recent changes made in the Adoption Act regulations without public discussion. Your petitioners respectfully request, in the spirit of open government and in the best interests of the children of British Columbia, the honourable House pass legislation to reinstate previous regulations governing the adoption of infants and children, at least until the public's interests have been fully considered."

Orders of the Day

Hon. G. Clark: Just to inform the House a little, we plan to do three reports of estimates, I believe, before we move into breaking into Committee of Supply and the various bills. So first of all, I'd like to call the report or wrap-up of the Ministry of Finance estimates.

REPORT ON COMMITTEE A ESTIMATES: MINISTRY OF FINANCE AND CORPORATE RELATIONS

J. Weisgerber: We did indeed debate the estimates of the Ministry of Finance and Corporate Relations yesterday, and one of the areas where we were certainly disappointed in our ability to get a good, clear rationale was the whole area of the reporting in the estimates of the $250 million from the Columbia downstream benefits. It was clear to us, and clear from the material available, that the minister had been advised by the comptroller general and the auditor general, and in a split opinion from Peat Marwick, that the money shouldn't have been handled as revenue.

The comptroller general suggested that it should have been applied against debt; the auditor general took a somewhat different position and suggested that the money should have been recorded as income in the years in which it was earned, starting in 1998.

It was pretty obvious that the minister had simply continued to look and shop until such time as she could find someone who could give at least a qualified approval of her plan to take the $250 million into revenue. As events have proven, it was a mistake; it was a bad decision taken by the Minister of Finance. It is a decision that has had serious repercussions for the people of the Kootenays -- the people who might be affected by the expenditure of that money -- and has led in large measure, I believe, to the collapse of the agreement on the sale of the downstream benefits.

Despite a fairly lengthy debate on that issue in estimates, we were unable to get a satisfactory answer from the Minister of Finance and Corporate Relations on the rationale for that decision -- one of the worst decisions, I think, that we have seen made by a Finance minister in a number of years in this House.

[2:45]

D. Mitchell: I'd just like to echo the words of the leader of Reform B.C. to indicate that the minister didn't really satisfactorily explain to us in her estimates review how that mistake could have been made.

It might only be a bit more than 1 percent of the total $20 billion budget that she bears responsibility for, but it would have been far more refreshing for this Minister of Finance and Corporate Relations to admit that she had made a mistake, and to simply admit to the people of British Columbia that a significant error of a quarter of a billion dollars of accounting for revenue had been made in her budget. It was a mistake, and now we may have to scramble -- we don't know. The minister has told us that everything is under control. That's great, but wouldn't it be refreshing if she admitted the error?

One other issue that the minister wasn't very forthcoming on -- and I wish she had been -- deals with the privatization plans of the government with respect to B.C. Rail, which her ministry has undertaken some reports on. I wish she had been more forthcoming on that as well.

F. Gingell: With the B.C. Securities Commission in transition, and with the Public Accounts Committee most recently

[ Page 15222 ]

dealing with the issues of debt management and hedging, pension funds and unfunded liabilities, we were able to deal with the estimates in about six hours.

We touched on a number of technical matters and inquired into the progress of the Public Service Employee Relations Commission, long term disability issues and pay equity. We discussed goal-setting, program outcome measurement, student loans and the progress of the corporate accounting system.

We also talked about consistency in financial reporting practices. I think everyone in this House is aware of my concern about, and disagreement with, the accounting treatment in this year's budget of the then anticipated $250 million payment for a portion of the Columbia River downstream benefits.

For me, it is a second-or third-year accounting exam question. Of course, I used to teach CGA students. Mr. Speaker, I want to inform you that the minister got a zero. This issue won't come up, because the deal has collapsed. The minister was upset that I would suggest that they had probably realized that the certain qualification of the auditor general of the public accounts for the year 1995-96 would not come out until after the next provincial election, when it will be too late for the people of British Columbia to have confirmation of this piece of fiscal flimflammery.

To close, the minister and I do agree on one issue: the fine quality of personnel who work in her ministry. I wish to compliment them, and I also wish to compliment the minister on the commitment and energy that she brings to her role as minister.

Hon. E. Cull: I spent this morning in my other portfolio and had the opportunity to announce another acquisition to the Lower Mainland Nature Legacy. I mention this because there is a very strong connection between what we're doing in the environment and what we're doing in the economy. I think the whole point of our debate around the Finance estimates was not to deal with the Ministry of Finance in isolation, with just the bits and pieces of the ministry -- whether we're looking at human relations or public service pension plans -- but to look at the role that the ministry plays in supporting our government's strong goal of a healthy economy.

As I said in the estimates debate, our priority has been to ensure a strong economy, one that keeps creating jobs. Our first step and the major responsibility of the Minister of Finance has been to put our fiscal house in order. We have done that. We have eliminated the deficit of $2.4 billion one year ahead of schedule. We have cut the rate of growth of spending so that on a per capita basis it has been reduced for the third year in a row. We have frozen taxes for three years -- we're in the second year of that.

We have worked with the business community to put in place a debt management plan that transcends partisan politics, as the member of the board of trade said when he transmitted the recommendations to me. That's something that should move beyond partisan politics, but if adopted by this government, it will ensure that British Columbia continues to have the lowest debt in Canada, and the lowest debt-servicing charges in Canada. It's already beginning to pay off in the two confirmations that we've had of our credit rating from bond-rating agencies.

Two of the agencies have reported confirming our credit rating, and I expect confirmation from the other two very shortly.

As the opposition critic has implied in his closing remarks, we had a very civilized debate for most of the six hours we spent on this. I think it's to the credit of the critic that the debate went quickly and that we stayed on the issues for the most part. There are two issues that I want to mention, two things that surprised me in terms of the debate -- not so much the issues, but the way in which the issues were raised.

The first is that the only tax matters the opposition critic raised were about those taxes that affect large corporations and the wealthiest British Columbians. I find that somewhat strange or...

An Hon. Member: Revealing.

Hon. E. Cull: ...revealing, as one of my colleagues says, because British Columbians do feel that they are bearing a tax load, and they want tax relief. But the only comments that the opposition critic brought up were to question the corporation capital tax, and the marginal tax rate for those British Columbians earning in excess of $80,000 a year.

I actually did something unusual in the estimates debates: I caught the member a little off guard by turning some questions around and asking him some questions. I asked him what his party would do if they were to eliminate the corporation capital tax, and the answer I got back was that maybe there's something we could do with some small increase in consumer taxes. The consumer taxes are, of course, the provincial sales tax.

F. Gingell: Read the Blues, read the Blues.

Interjections.

Hon. E. Cull: I've looked at the Blues, hon. member. The member is suggesting....

Interjections.

The Speaker: Order. Order, hon. minister. Hon. members, it is most unparliamentary to speak....

Interjections.

The Speaker: Order! Hon. members, unless the Chair is addressed, it is most inappropriate to be speaking in any event, but certainly so from your chair. I would ask the hon. members to respect parliamentary procedure in that regard.

Hon. E. Cull: Thank you, hon. Speaker. I have obviously hit a nerve over there with respect to what they would do to deal with these taxes. You can't eliminate $330 million worth of tax and say that you will balance the budget and provide more services, without finding some place to take them. The discussion yesterday was revealing in the mention of consumption taxes, and $330 million would be a 1 percent increase in the PST.

The other interesting aspect of the tax debate revolved around school taxes. The member did not in any way address the fact that their commitment of eliminating the school taxes from property tax would involve a massive shift from business to families. The fact that they raised no other tax issues and no other issues of concern to the ordinary families in this

[ Page 15223 ]

province, who are struggling and feeling that they go from paycheque to paycheque, is very revealing with respect to the agenda of this particular party.

The second issue that surprised me wasn't the topic. I had fully expected that we would debate at length the $250 million of Columbia River downstream benefits. What surprised me was the approach that was taken in the end. Let me state again for the record that all revenue in a budget is an estimate, and no matter what happens with respect to resource payments, sales tax revenue, income tax revenue or lumber stumpage, we fully intend to balance our budget and to stay on track with our fiscal plan, as we have each and every year of our budget when things unforeseen came up.

What was curious about the debate we had was that the opposition critic made it very clear that what he would do in the case of competing opinions is select the opinion of the auditor general, not the comptroller general, in this case. As I have pointed out -- and maybe he doesn't know this, not being a minister of the Crown -- this would have required a Treasury Board decision to overrule it. It is unfortunate when you have a situation where a political committee is overriding the office of the comptroller general.

I made it very clear yesterday that despite the differences of opinion that exist among the accountants, I have full confidence in our comptroller general and intend to continue taking his advice.

As I said, the ministry estimate debates had many details in them, but it really all comes down to what the best plan is for supporting our strong economy. We have the best economy in Canada. How do we keep it?

You could keep it the way the opposition suggests, which is to cut services, cut the wages of the people who provide those services and cut taxes to those who need help the least, or you can select a plan that says it is time to continue to invest in our province, to have confidence in our future, to invest in training of our people and in our natural resources, to create more protected wilderness and to ensure that we have the necessary economic infrastructure to keep a healthy economy. I found the debate very interesting. It made the choice very clear.

The Speaker: Thank you, minister. That concludes the reports on Finance, hon. members.

Hon. G. Clark: I call wrap-up on the Transportation and Highways estimates.

REPORT ON COMMITTEE A ESTIMATES: MINISTRY OF TRANSPORTATION AND HIGHWAYS

L. Hanson: I participated in the debate regarding the Ministry of Transportation and Highways estimates. We spent a lot of time on the minister's Crown corporation responsibilities, and although the motor vehicle branch is not a Crown corporation, we spent a lot of time on that. I suspect the main reason was that we learned very quickly that we should have had the Minister of Employment and Investment there if we wanted to learn what was going to happen in Highways in British Columbia next year.

The minister was pleased to announce that there was about $400 million being spent on capital projects, although it was almost impossible to elicit any specifics about what that $400 million might have been spent on. I suppose when we see the bureaucracy being created at Highway Constructors and in the highway financing authority, probably that's where we should have directed our questions to get the answers we were looking for.

[3:00]

We were disappointed to learn that the renovation project this year, where they pick up the pavement, refurbish it and lay it down again, has dropped to 300 kilometres from 500 kilometres last year. That's very disappointing. As a matter of fact, we suspect that those people who have invested the money in equipment to provide that service to British Columbia will be looking to move to other jurisdictions.

But I have to compliment the minister for, as far as she was able, being very candid with the answers we were given. Hopefully, next year we can combine the two ministries, so we might know more about what is going on in Highways when we ask questions.

D. Mitchell: I know the Minister of Transportation and Highways tries hard to do a job under very challenging circumstances. I'd just like to take this opportunity, after the estimates review debate, to remind her that in her capacity as minister responsible for B.C. Rail.... That is an equally important part of her responsibilities.

This is a very successful, profitable Crown corporation, and I'd like to encourage the minister to try to pursue her responsibility to this Legislature for that particular Crown corporation to the same degree she attempts to show for the ministry she bears responsibility for, and to be more forthcoming about questions dealing with the potential privatization of that Crown corporation. If, in fact, she or her government colleagues are seriously considering that, that's nothing to be ashamed of.

The minister should be encouraged though, I think, to be much more forthcoming and to end any of the uncertainty associated with this question in our province.

D. Symons: I also would like to compliment the minister at least for the cordial relationship we had with each other during the estimates. I wouldn't say that we always agreed on things; certainly not. But the minister was quite willing to answer questions when she was able. As mentioned by one of the other speakers, the problem was that so much of this seems to be decided outside of her ministry.

I also had some great concerns about rehabilitation underspending. Rehabilitation can add years and years to work and prolong the time before a major rebuild of a project is needed. There was a study done a few years ago called Good Roads Cost Less. It seems to be the definitive study on the need for rehabilitation. We are spending $138 million this year on rehab projects,

whereas that study would indicate that we would need to do over $200 million simply to restore or keep the infrastructure we currently have. We are losing infrastructure year by year, and each year that we put that off by underspending, we're making a larger and larger deficit of highway infrastructure that's going to have to be made up by some government in the future.

Spending in the ministry has been reduced by this government; but the spending has been reduced on the roads, not in the streamlined delivery of service and management. I'm disappointed to see, as another member mentioned also, the reduction in the hot-in-place. This hot-in-place process is a

[ Page 15224 ]

very cost-effective way of bringing about rehabilitation of roads and extending the useful life of a given road. As mentioned, it was 450 lane-kilometres last year, down to 300 this year, and that 450 was down from the year before that. So we can certainly see a downward direction in looking after the infrastructure we already have. I hardly see the point of building more roads, more highways, if we can't look after the ones we currently have and keep them in good shape. But that seems to be where we're going.

I will compliment the minister on the fact that the ministry is now looking at the design-build process as a way of cutting corners in the expense of having projects take place, where you have a design and a build in one contract, rather than have it separated and then have the interactions that cause more costs -- in going between the designers and the builders of the project. So that's a plus, and I would like to see more of it. I have not seen any indication of more of those coming down the line, but I hope that's just the beginning of a long series of those approaches to putting bids out on projects.

I was also concerned that we hadn't heard of a couple of projects that I think are long overdue. They have been around the mill for quite a period of time, and I think those in the Surrey-Delta region have been looking forward to hearing that the perimeter road that's long overdue is being given more attention than is currently being given by the ministry. Also, of course, those on the North Shore are dying to hear when that Lions Gate Bridge project is going to be announced, what sort of crossing it will be and when it will be. So that's something else that's overdue that should come forth.

Tied in with that is the idea that the ministry is moving more into a process called value engineering in its giving of bids. I think that's a move in the right direction, and I would commend the ministry for looking at that approach where they might be able, through cooperation between the ministry and the contractor, to save a bit of money if the contractor is able to devise ways of giving the same product at a lesser price.

Another topic that came up was the idea of 16-foot-wide vehicles on the lanes, particularly in the Peace River area. They have a project going on right now, and I would agree with the member for Peace River South, who suggested that possibly for the Peace River -- being a unique area of the province east of the Rocky Mountains -- there could be different rules for people in that area. Sixteen-foot-wides may be available for transport on the highways there,

whereas it would not necessarily be suitable in the rest of the province. I would suggest that the minister might look at the fact that we do have a unique situation in the Peace River area, and that deserves special consideration.

I dealt for a while with the Island Highway project, particularly the fact that the Island Highway is being downsized. When this project was announced, we heard time and time again that they were going to set up Highway Constructors Ltd. to see that it was done by union labour and that it would be on time and on budget. In effect, we have heard that it's neither of those. Certainly the minister has admitted that it's not on time. They have postponed a few of the projects by a year or so; some of them were already a year behind, anyway. Also, the minister uses the term that it's on budget when indeed they had to reduce the scope of the project in order to stay within their budget.

The Speaker: The hon. minister concludes.

Hon. J. Pement: I have to say that we certainly canvassed a wide scope of issues, and in some cases I think we were all over the map with regard to the different projects. I thank the members for their concern and interest in a particularly important part of British Columbia, the transportation system. I must remind members that our ministry has been working towards a consultative approach of careful planning and developing so that we have an integrated transportation system, and so that this system will support and sustain our economic growth. I think that's particularly important to our province -- also that we have a safe system as a whole.

Interestingly enough, for the last two years we have had a number of major projects on the go; overall, around $2 billion worth of major projects, from the Vancouver Island Highway through to projects in the lower mainland, Okanagan and the regions. This year alone we will be spending $400 million on upgrading our system. In terms of the future projects that we will be announcing, that has been really important towards alleviating some of the congestion in some of the high-growth areas. I again want to say to the members that these announcements will be made.

They will know what the projects are as soon as our budgets are finalized with regard to the capital projects. Those capital projects are done through the Transportation Financing Authority. It's one that some members seem to have difficulty understanding, but I think it's fairly clear that this authority is allowing us to do these projects over a given time, and it will ensure that we do meet the goals we're looking at.

We have 42,000 kilometres of highways, 2,700 bridges and 19 ferries in British Columbia, so we have quite a system. This year we will be spending $375 million on maintenance alone in this province, and $142 million-plus on rehabilitation projects. I think that's pretty significant in terms of sustaining our system and meeting the economic growth of this province. It's outstanding, when considering what's happening in other provinces in Canada.

With regard to the Vancouver Island Highway project, it's really interesting to note that there will be 226 jobs on that system by the end of this construction season. Over 90 percent of those jobs are on the Island, and I think it's commendable that this government has worked on a program to ensure that there is local hire. HCL is helping to ensure that on many of these projects we have local hire, apprenticeship training and an opportunity for everyone to access these jobs. Again, I think it's commendable that this government has set up a program to do so.

In the area of motor vehicles, we are going to look at some major changes in British Columbia to drivers' responsibilities, to traffic safety initiatives that we'll be speaking on in the House under the acts that have been introduced and, of course, also to the ministry itself in that particular section. The changes will be made in their whole technology computing systems.

There is a major undertaking in that particular department with regard to upgrading their system so that they're more effective and working effectively with the Crown and ICBC in order to deliver a better system for the people of British Columbia. Again, I commend our government for assisting us with the funding so we can do so.

I think that on the whole, our government and my ministry have been working diligently to ensure that British Columbians are going to get to work, to school, to recreation and to medical care. I look forward to working with my staff for the

[ Page 15225 ]

next while with regard to meeting the needs of British Columbians and the goals of this ministry, and I thank the members for their participation.

REPORT ON COMMITTEE A ESTIMATES: MINISTRY OF EDUCATION

The Speaker: First will be the member for Okanagan.... Omineca.... Prince George-Omineca.

L. Fox: It's good to have you back, even though you occasionally have difficulty remembering which riding I'm in.

Let me first say that I am very thankful to the minister for his participation and cooperation throughout the estimates. I think we canvassed a very wide variety of issues and all aspects of the education portfolio. We certainly discussed the issues of portable classrooms, the process of capital improvements and some of the criteria that were used in order to decide priorities. I think there were some differences of opinion, however, over what was the number one priority in terms of qualifying. It still seems to me that politics plays too great a role in the school approval process. However, I'm sure -- as it was then, it will be today -- that the minister will disagree with that.

One of the key issues that was debated at some length by virtually all of those who took

part in the estimates was where we were going with education. In my limited time here, I'm not going to be able to address too much of that, but it seems to me, as I travel around the province and my own constituency, that there are grave concerns that we don't have enough choices within our existing school system. We have a problem. Oftentimes our educational level is brought down to the lowest common denominator rather than placing more emphasis on traditional learning and teaching values.

Those concerns are prevalent; we see those concerns coming not just from parents but from teachers, administrators and students. Proof of the problem is in the statistics, and the statistics are on the record.

I also wanted to just mention in this wrap-up the contribution of the member for Chilliwack, who spent some time talking about his concerns about violence in the schools, particularly in his riding. He made some good points, and those points are available for all members and for the audience to look up in the Blues.

With those few comments -- I see that my time is about to run out -- I would like to thank the minister for this very cordial and often very straightforward debate. Even though we differed in terms of some of the issues that we talked about, I think we had a very good debate on them.

[3:15]

L. Stephens: I too would like to extend my welcome-back sentiments to the Speaker; it is good to have him back in the chair, and I'm sure all members are pleased that he has returned to us.

I would also like to express my appreciation to the Minister of Education and his staff for their forthrightness and patience during these fairly lengthy Education debates this time.

During those estimates it was generally agreed that for students today and in the future, education must bring about a fundamental change in the skills, attitudes and values that are needed to ensure a prosperous future for all of our citizens. Statistics show that education has become the most obvious dividing line in the Canadian job market.

During the debates, we talked about the number of students graduating from high school in British Columbia. The fact is that the number of students graduating is falling; the graduation rate is now below 70 percent. Put another way, 30 percent of B.C. students are not graduating, while a decade ago 80.9 percent of the class of 1982 graduated.

Also, the number of portables in the province has gone from 1,800 to the current estimate of about 2,850. This represents an increase of 37 percent. School construction accounts for less than 20 percent of the billions of dollars of debt that have been added in these last few years. By cutting back on other priorities, such as bureaucratic growth or fast-tracking the Island Highway, the government could have built more schools and still could have accumulated less debt.

In April, independent contractors commissioned a report that concluded that the government had approved 106 school projects worth a total of $509.6 million since the fair-wage policy was adopted, but that they could have saved between $35 million and $65 million if that fair-wage policy had not been applied. These dollars could have built an additional 1,660 classrooms in this province.

Today, as we speak, the education of students in Delta School District is under a cloud because of the breakdown in contract talks between support staff and the school board. This is no way to run an education system, where the education of the students may be lost or put on hold during a labour strike. This simply reinforces the official opposition's position that education must be an essential service.

The Korbin commission also considered the issue of school board amalgamation. It concluded that further review of the boundaries and the scope and number of school districts should be undertaken by a special commission. The Minister of Education this year, rather than going ahead with the amalgamated school districts that he had initiated a study on and decided to cancel that.... The minister must know that the time for study is over and that we really have to get on with amalgamating some of these school boards.

The parents, the business community, other social agencies and the general public are calling for increased affordability and accountability in relation to the cost efficiencies, effectiveness and standards of performance in educational outcome. Really, there are many things missing. One of those is choices for the parents, teachers and students in the kinds of schools, programs and methods of instruction available to students today in British Columbia.

Also, the flexibility that local school boards and local schools need for local initiatives, innovation and responsiveness to community needs -- these have to be increased. Local autonomy for school boards needs to be heightened. The increased targeting that Bill 23, which was debated in committee stage in this House last night.... This particular bill will do more to impede local autonomy and local initiatives than any other bill that's been presented in this House.

We need incentives for performance in the schools. Districts that achieve significant learning gains over previous years' results should receive some kind of bonus or incentive for them to continue with rewarding success. Also, local

[ Page 15226 ]

schools and the school boards require clear and well-advised action on setting standards of academic and educational achievement. It is also important that schools and school districts have the flexibility to address local goals and objectives. Deregulation also is a major consideration.

I just want to say in closing, quite simply, that the government doesn't have its priorities straight. The education system is not there to be manipulated. It's there for the students, and the government must once again be reminded of that.

The Speaker: The minister concludes.

Hon. A. Charbonneau: Let me say at the outset that we have in British Columbia a very good education system that this government is in the process of making even better. The basic mission is to provide an equal opportunity for an equal start in life for all children and youth. There are about 600,000 students in about 1,750 schools, served by about 35,000 teachers and 25,000 support staff. It's this government's clear view that this is best accomplished through a publicly funded, publicly administered education system.

We had a good debate in estimates on a wide variety of issues -- lots of views exchanged. I'm going to be limiting my comments here primarily to the big picture, if you will, on how this government's agenda is improving education in British Columbia. To succeed in that mission, the education system must provide quality. It must provide standards -- high standards. It must provide accountability for students, parents and the community. We must have a curriculum that is relevant. Let me briefly outline what we're doing in each of those areas.

In relevance, we are shifting to applied academics to meet more of the needs of a greater proportion of students in our classrooms. We're implementing new curricula, starting this September. Over the next three years, we will introduce a completely new curriculum for the entire core of the overall curricula for the system. This year, in career and personal planning, we're introducing the program or course on career and personal planning for grades 8 through 12, which is going to help young men and women make choices and help better prepare them for the world of work or the world of post-secondary study, once they leave our care.

In the process of rolling out those new curricula, we are updating and embedding current knowledge and current technology -- particularly information technology -- within those curricula, and we are insisting on high rigour throughout. We may be changing the focus, but the rigour will be just as high.

We have started the process of putting out what are called integrated resource packages, which allow a teacher about to teach new curricula a complete set of supports all in one place: knowing what the outcomes are, what some suggested teaching and testing methods are, and what resources are available. For the very first time, this will be available in one place for all courses as they are rolled out.

With respect to standards, parents and students have a right to high standards, a right to expect the best. Parents want to see their children actually master the material they are presented with, not simply move from grade to grade. We have introduced new reporting and grading systems that are more responsive to parental and student need. We have highly qualified teachers -- highly qualified educators -- and the ministry supports, on an ongoing basis, professional development.

In accountability, I've mentioned the improved reports to parents, but we will also continue to participate in provincial, interprovincial and international testing. We will also be issuing district reports in which the performance of a district can be made clear to parents and other members of the public who want to obtain that, and we are participating with all Ministers of Education in issuing a national education report by the end of this year so that students and parents will be able to see how B.C. compares across the country.

In all of those ways, we are improving the education system in the province. In order to do that, of course, funding is required. For four years in a row we have increased funding in our budgets -- this year by 3.3 percent. Even though we are seeing growth rates of 12,000 to 14,000 a year, we have been able to maintain full funding for every new student that has come into our system -- the only province in Canada that has been able to do that. At the same time, on the capital side, over four budgets, $1.7 billion has gone into capital construction. We have gone further to meet the needs of the system than any previous government.

We have been preparing and having a space ready for those 12,000 to 14,000 new students each year, and contrary to what the member opposite said earlier, we are actually making progress -- that is to say modest reductions -- in the number of portables in the system from four years ago.

We are, then, delivering on the improvements in education in exactly the same way that we said we would in the report to parents in November 1993. But just providing the high-quality curriculum, the standards, the accountability and the relevance is not enough. We also have to provide the funding; I've spoken to that. We have also made the funding fairer, with a new distribution system that the system has applauded.

We also have to have equity amongst career choices. As I've said, we're shifting to applied academics, and we're looking to reinvigorate the vocational and apprenticeship side -- through Skills Now, partially. We're recognizing talent with respect to that with apprenticeships for the first time.

It is also vitally important to have equality of opportunity. This is one area where we have profound differences with the opposition Liberals. We believe in a high-quality system for all students, and we oppose charter schools, which would provide a higher level of education for some students while others get by with less. We will not permit a two-tier education system to be established in British Columbia.

I would like to thank the member for Langley, the Education critic for the official opposition, and the member for Prince George-Omineca, the critic for the Reform caucus, and all other members of the House who engaged in a very worthwhile debate through the estimates.

[3:30]

Hon. C. Gabelmann: I call committee on Bill 16, Class Proceedings Act.

The Speaker: There is still Committee A.

[ Page 15227 ]

Hon. C. Gabelmann: My apologies; I thought that was called at 2:30 p.m. In Committee A, I call the estimates of the Minister of Skills, Training and Labour.

CLASS PROCEEDINGS ACT

The House in committee on Bill 16; D. Lovick in the chair.

section 1.

L. Fox: I'll just take a minute or two, because I think one of the members of the official opposition had to run down and get his bill.

One of the questions I had on this act.... I'm not sure where the appropriate spot to ask this is, but I thought I would ask it in this section, because there might be some need for clarification within the

definitions section. It seems to me that this act is going to draw a question given that there's lots of other legislation that contains clauses that protect the government from any actions against it. In this class-action legislation, the government is exposed to actions contained within this legislation. The question that I would have to ask is: which legislation would take precedence in that kind of situation? Is there a need to address that in this

section of the act?

Hon. C. Gabelmann: Unless the government has some legislative provision in another statute that one way or another prevents a suit, the government is -- except for that -- open to suit. It doesn't matter whether it's a suit from an individual or a group of individuals operating in combination. Whatever opportunity is available to an individual in terms of suing the government is available to a group of individuals combining into a class.

L. Fox: In simple terms, then, the other legislation takes precedence over this legislation.

Hon. C. Gabelmann: Yes, because this act doesn't open up any new avenues, other than establishing a procedure for combining together.

Section 1 approved.

section 2.

J. Dalton: The first question I have is: why is it that, under subsection (1), the class of persons must be resident in the province?

Hon. C. Gabelmann: I think the basic answer is that this is a piece of legislation designed to assist British Columbians; so if there is a class of people who have a cause for action, in order for the case to take place in British Columbia, one of them has to be resident here. It could be that the majority of the group doesn't live here, but one would have to.

J. Dalton: My reading of subsection (1) is that the class must be resident in British Columbia. That class could be two or more.

The other question I'll direct to the Attorney at this time is: is it possible that the member who may commence the proceeding could be a non-resident of British Columbia and everyone else could be a resident of the province?

Hon. C. Gabelmann: The member will have noted, I am sure, in his review of the legislation that in

section 6(2), there is a provision which requires that the class of residents must be divided. In other words, the British Columbians are in one group and the non-British Columbians are in another, in terms of a subdivision of the group.

J. Dalton: Well, I must confess I don't understand why you could not have a class of persons none of whom are resident in British Columbia. Let's take a situation. Let's take a truckload of Americans on a tour of British Columbia, and they're all involved in a traffic accident. Is the Attorney telling us that that truckload of Americans would not be permitted to take a class action in this province for a motor vehicle accident that occurred in this province? Where would they take the action?

Hon. C. Gabelmann: The simple answer to that is, while the member may want to argue that we should enable non-British Columbians to sue by way of class action when there are no British Columbians who would be party to the suit, we have chosen to make this legislation available to British Columbians. If a busload of California tourists have a cause for action, they will have to pursue that cause in the old-fashioned, traditional way.

J. Dalton: Well, that's the answer I expected I was going to get, and it would seem to defeat the whole purpose of this act, whereby we can get a collection of people together and cut down on the costs of court and the tying up of the courts. The Attorney has told us the very thing that's going to defeat that purpose. This hypothetical truckload of Americans would have to take individual actions in the courts of British Columbia, dealing with a motor vehicle accident in which they're all involved -- one accident. Let's extend it further. Let's say that they ran into a busload of British Columbians.

I'm sorry, Attorney, but I have a great deal of trouble understanding why you are starting off an action, which has a lot of merit, and clouding the picture with something that quite frankly doesn't make sense.

Hon. C. Gabelmann: The member makes a suggestion that I think is not without merit. The decision was to make this available to British Columbians. On the surface of it, with two or three minutes' chance to discuss it here, there's a legitimate argument being made. My suggestion would be that we get on with this and we look to improving the legislation if it needs improvement, by this or other suggestions, in the next session of the Legislature.

J. Dalton: Well, we're breaking new ground here. It's new ground that we would like to applaud the Attorney and his government for breaking. But it is going to be very difficult to applaud and set out a new ground when the Attorney has just told us this very moment that this act may have flaws -- we're only on the second

section -- and that he might be back later to amend it. I'm sorry; I'm entirely uncomfortable with that.

I'll just repeat it once more. I cannot understand why the class must be residents of British Columbia, because the Attorney has quite rightly directed our attention to

section 6(2), whereby you could have a class of residents and persons who are non-resident. Well, I'm just suggesting the obvious -- that you could have an entire class of non-residents. There's

[ Page 15228 ]

no reason why under this act you should prohibit access to a collective proceeding by non-British Columbians. The only alternative is to take individual actions.

Let me ask my next question, then. It was actually going to come up under

section 3, but I'll ask it now. We have joinder of actions in the rules of court of the province, and the joinder could be of non-residents. What is the difference between that joining of actions of non-residents and allowing non-residents in a qualified action -- a cause of action arising in this province -- to take action accordingly?

Hon. C. Gabelmann: As I indicated to the member, he may well be making an excellent point. If it were a simple matter of doing a House floor amendment, I would be very happy to consider it. But it isn't, because we have the subclass issues to deal with, and there would be a significant amount of legislative redrafting to accomplish this aim.

I think we're making excellent progress by enabling British Columbians, to begin with, to have this right for the first time. I've said this for many years in this Legislature. No bill, no matter how carefully considered or how well drafted, is ever going to be writ in stone, because we can always improve everything. We should always be looking at legislation with that in mind. We are making a start here. We are enabling non-residents to join in a suit. We are designing this for British Columbians. Should a decision be made in the future to enable an entirely non-resident class action to commence, then that's something we'll consider in the future.

J. Dalton: I have just one more point on this. Given that your consultation document, hon. Attorney, refers often -- and rightly so -- to the Ontario experience, because they've had

an act since '92, and it's a jurisdiction that is a useful one to compare.... I suppose we might even want to make an aside and say we could compare the results of today's election in Ontario to what might happen here.

An Hon. Member: You mean the Liberals' free fall there.

J. Dalton: I wouldn't even bother touching that remark, given that we know the government of the day has fallen over the cliff and disappeared.

Has the Ontario act any reference in it to non-residents gaining initial access to a class proceeding? Is it also exclusive to the residents of that province?

Hon. C. Gabelmann: The Ontario legislation does not have a subclass or non-resident component to it. We have the subclass component, which makes the organization and pursuit of a class-action initiative easier. They don't have that; they simply say that.... They're silent on the question. They don't have a subclass process; that's why it developed this way.

I'm not quarrelling with the member; the member may well be right. For me to stand up here and say that I'm always right and the member is always wrong would be crazy and stupid and wrong. I'm just saying that we've made a decision to organize our act slightly differently from the Ontario act, and we've organized the subclass process.... If, on reflection in the future, we decide that a group that is entirely composed of non-residents should be able to take advantage of this, I'm certainly open to it. But it's not possible on the floor of the House this late in the session to do the kind of changes that would enable that.

I'm simply saying that it's an open question. We've taken a slightly different approach from Ontario on this question, and that's why.

Sections 2 and 3 approved.

[3:45]

section 4.

J. Dalton:

Section 4 deals with the number of persons, whether they be resident or otherwise, of course, who could apply for certification. I made comments in second reading about the issue of numerosity, which, of course, has been addressed by the Ontario Law Reform Commission when they were examining their proposed legislation. It was the advice of the Ontario Law Reform Commission that there had to be numerous members before a class action was appropriate.

I quote from the Ontario Law Reform Commission report: "Although no minimum number of class members has been fixed by the courts in other Commonwealth jurisdictions, the courts have been reluctant to allow a class action to proceed where the class consists of a handful of members." The report goes on to say: "Where there are only a few claimants who can control their own litigation, class action procedure makes little sense." Would the Attorney agree with that advice? Or would he care to comment at least?

Hon. C. Gabelmann: The debate in second reading was interesting, because the member for West Vancouver-Capilano questioned the ability of two or more to join together.... He suggested somehow -- he didn't say this, but suggested somehow -- that the number should be multitudes. I thought the member for Matsqui quite appropriately made the point that this legislation should be available to small groups of people. For example, two individuals in a motor vehicle accident who have cause for action may wish to join together rather than proceed separately.

I think that's an appropriate thing to do, given the principle here of people joining together to reduce the number of cases that have to be followed and to enable them to more easily afford what they're doing.

J. Dalton: The other issue I'd like to address in

section 4 is commonality. As we see in

section 4(1)(c), "common issues" is a phrase that is used. In the consultation document that the Attorney circulated in May last year, there was a proposal that the claim or defences of the class members raise common issues. The proposed legislation does not state that the common question should dominate. This is the issue that has been flagged: whether the commonality issue is properly addressed by simply using the phrase "common issues" in the legislation rather than "common questions," which I think is a little more pointed and will help the court.

Keeping in mind that the judges who are going to be faced with this for the first time will have no guidance from jurisprudence of this province.... They will have guidance from Ontario and other places, but there have been relatively few certifications, as the Attorney knows. In fact, in his closing

[ Page 15229 ]

in second reading, he commented on the point that I made: there were only five out of 11 certifications as of 1994 in Ontario.

So we have very little to go on, and we don't want to go on the American experience, I don't think. As I read out in second reading, some of the interesting class actions they have down there, including all Americans.... I don't know who they were suing; perhaps they were suing Bosnia or something. I cannot think of how a class action could escalate to that level. We have to try and get some understanding of this issue of commonality and whether "common issues" is satisfactory, or whether we should extend it.

Hon. C. Gabelmann: What we've done with this commonality question, if I can call it that, is draw from the Ontario experience. A case in Ontario, the Abdool case, spoke to it. What we have suggested here in

section 4(1) is that common issues don't necessarily have to predominate; they may or they may not. In

section 4(2) the court has to consider a series of issues. In susbsection 4(2)(

a) it has to consider: "whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members." So what we've done there is.... In

section 4(1)(

c) we have taken advantage of the experience with the Ontario law, which was not clear on that issue, and we have expressed some clarity. So are the common issues dominating? That's one of the factors that gets considered.

M. de Jong: In

section 4 there is an enumeration of the factors that the court is going to take account of before making the determination of class certification. One of the things that doesn't appear is an indication that there will be a measurement against possible prejudice. I look at

section 4(1)(d), and it says: "a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues...." We can all think of circumstances where one of the litigants -- perhaps a defendant, a plaintiff or a member of a supposed group -- would be in some way prejudiced. I'm not sure how you would include a reference to that in the section. I don't think you would want to, say, preclude a class certification in the event of prejudice, because that might preclude it in almost every case; but perhaps in the event of undue prejudice resulting....

It would be a very subjective test, as many of these tests are, but I wonder if the Attorney General gave any thought to the inclusion of that as part of the test.

Hon. C. Gabelmann: I'm not entirely clear what the member wants to achieve here. That issue, the issue of prejudice, is not contained in any of the other legislation that we borrowed heavily from, or even the legislation we didn't borrow heavily from. It's just not there. It seems to me that the issue of prejudice, if it arises, is one that the court would determine in any event. If I understand clearly what the member is saying, the short answer is no, there was no consideration to putting a subsection of that kind in.

M. de Jong: That may be the answer. The answer may be that the legislation chooses to rely on the inherent jurisdiction of the court to consider those points. That is an argument that I suspect the courts will hear when there are applications for certification. They will certainly hear it from defendants who might be involved in other actions with other plaintiffs.

The next question I have relating to

section 4 is on 4(1)(e). I make two observations with respect to

section 4(1)(e)(i). These again are very subjective terms. When you're determining who a representative plaintiff would be.... Would they "fairly and adequately represent the interests of the class"? And I presume that a body of law will evolve around that in determining just what that means. It's a difficult concept to define legislatively.

I have more concern, if you call it that, about

section 4(1)(e)(ii), which is talking about producing a plan for the proceeding, and I would like to know what manner of plan we are talking about. Did the ministry consider producing a draft practice directive as part of this legislative package -- something that litigants could look to right from the outset to know and understand what their obligations are in presenting their application to the court? What kind of plan are the courts going to be looking for from plaintiffs who want to be representative plaintiffs?

Hon. C. Gabelmann: The rules committee isn't likely to produce a model plan. The member knows that in the rules of court there are other requirements in other situations where the management of a case has to be laid out. My expectation is that there will be a bit of trial and error in the early going, and that a pattern will evolve following several of these cases proceeding.

M. de Jong: I'll leave that suggestion with the Attorney General. As a means of minimizing the trial and error, it may be worthwhile to circulate a draft practice directive that could deal with some of these issues. The courts are going to be presented with a mishmash of documents, and it's going to take some time to work these things out.

With respect to subsection (1)(e)(iii) -- and I think I referred to this during second reading debate -- I would like to hear the Attorney General's thoughts on how he would anticipate a court would deal with this balance between conflicting interests within the group. This can work itself out in any number of ways, but whenever there is litigation involving more than one plaintiff there are going to be conflicting views and conflicting interests, even insofar as settlement is concerned. The ability of plaintiffs to finance the litigation will determine how aggressive they intend to be.

I know there are provisions for cost-sharing and what not, but a court is ultimately going to be confronted with submissions from various plaintiffs that say, "I have these means," and they don't match the means of the person who wants to be the representative plaintiff. How does the Attorney General anticipate that is going to work itself out?

Hon. C. Gabelmann: I hope the answer to that is found in

section 35, which requires that the settlement be approved by the court. So that would be the remedy if there were a variance of interests or a need for a different payment

schedule for different individuals. The court has the jurisdiction to make sure that happens.

M. de Jong: That certainly speaks to the issue at the tail end of the process. The court won't have the benefit of that information at the time the application for certification is made. It's something the court is going to have to contend with, and perhaps the Attorney General has thoughts.... Maybe I'm making too much of the issue; maybe it's something the courts should be dismissive about. In terms of

inter-

[ Page 15230 ]

preting legislation, as we go through this legislation I am mindful of the recent decisions whereby, much to my concern, the courts have decided they are now going to look at debates in the Legislature for what the intention of government was insofar as some of these measures are concerned.

With those words of caution, I suppose the Attorney General may want to give us his thoughts.

Hon. C. Gabelmann: In terms of that point, I used to argue -- especially in my old role as a Labour critic and whatever -- that the Labour Relations Board should take into account what the Minister of Labour said when he introduced a particular section, because it used to work in our favour sometimes. Quite often what would happen is that the minister would misspeak himself, and that would serve as a useful opportunity in the hearing as well.

Having been on this side of the House in this job now, I would caution the courts against ever putting too much emphasis on what we say in respect to some of these bills, because we do a lot of them, and sometimes we aren't as clear in our minds about the details as our officials who have done the real work are.

Now, that wasn't the member's question. The member's question really relates to whether or not we should define these issues here in the legislation or allow the case law to develop. Our view was that it would be very difficult to define; it would be better to let the courts, through case law, evolve rules around this issue. It's a judgment call, but we felt it was very difficult to do within the legislation -- and that's consistent, again, with other jurisdictions.

[4:00]

L. Fox: Just a few brief questions, and I hope the Attorney General will bear with me, not being a lawyer.

Section 4(1)(c) -- and the official opposition critic touched on this -- suggests that class members can be joined together whether or not common issues predominate. I guess the concern I have is whether or not that may not prejudice some cases in terms of some of the plaintiffs or some of the defendants. It would seem to me that indeed there may be a situation where a plaintiff is in extremely different circumstances, perhaps a lot more severely damaged, but could be forced to be part of a class. One would question whether or not that wouldn't prejudice his or her case.

Hon. C. Gabelmann: The legislation is designed to allow the court to consider the individual differences that some members of the class may have, so that the court can consider those differences in adjudicating the case. I hope that speaks to the concern the member has.

L. Fox: Just one more question around the plan. Not knowing what a plan is, I guess the only question I would have -- and it makes reference to it in 4(1)(e)(ii).... I'm assuming here that the court or a judge is going to review the plan prior to the action starting. I guess that would lead me to wonder whether, in that assessment, part of it wouldn't be whether or not this action had an opportunity to succeed. Or would it just be how the overall structure of it was going to function?

Hon. C. Gabelmann: There's a specific prohibition against the court deciding on the merits of the case. They have to make sure that in fact this is an appropriate case for a class-action certification. They can't decide that it isn't because the merits aren't there; that's something they can't do.

Section 4 approved.

section 5.

M. de Jong: My questions relate to subsections (4) and (5); I just want to clarify.... Subsection (4) suggests that once the application for certification has been commenced and that process has been served on all the persons who are parties and all the persons who are involved in the style of proceedings, all other parties then.... All of those other parties are then compelled to file their own affidavits. I presume that that means defendants as well, and I'm wondering why that subsection is directive in the way that it is, compelling the filing of an affidavit by, perhaps, a defendant who isn't going to take issue with the application.

Hon. C. Gabelmann: I wonder if this would answer the member's question. The certification process proceeds by way of affidavit; it doesn't proceed by way of discussion in the court -- viva voce, I think, as the Latin has it. So there has to be.... The only way the court will know what the response is, one way or the other, is by way of affidavit.

M. de Jong: One of the ways.... I suppose if a defendant received material affidavit notice of motion from the plaintiff or plaintiffs, presumably -- and this was something that was discussed earlier this morning -- he would have the option to say: "I consent. I consent to your being the representative plaintiff, and, this being a class action, I consent with the form of order you're seeking."

If I go a little bit further, to subsection (5)(c), I'll perhaps signal to the Attorney General my concern about the section. During second reading debate I commented that there were some sections in this bill that I thought were intruding into the field of litigation, where the court was becoming involved in the litigious process, and I think subsection (5)(

c) is one of those sections. I think it might provide some explanation for why all parties are being asked to file affidavits, because subsection (5)(

c) says "provide the person's best information on the number of members in the proposed class." That would compel a defendant to provide some very specific information. So the first thing is that the defendant is compelled to file affidavit material, and as part of that affidavit material, he is required to provide information to the plaintiffs. Maybe we'll start there. That's my understanding of what's happening here.

Hon. C. Gabelmann: In many cases, perhaps in most, the defendant is going to be the person who knows best what the number of plaintiffs may be. For example, if the suit is against B.C. Hydro, B.C. Hydro will know better than the plaintiff how many customers it has who may be affected by the particular issue. That enables the court to better assess the questions it has to decide in terms of the certification.

M. de Jong: I'm not arguing that from an efficacy point of view; from the court's point of view, it probably makes good

[ Page 15231 ]

sense. But if we go back to a situation where we're not always going to be dealing with institutional-type defendants, you begin to wonder about the propriety of asking defendants to advise the court who else should be suing them. That's really what the court.... The B.C.

Hydro example is a good one when we're talking about, perhaps, thousands of people, but I suggest to the Attorney General that if he were being sued, the last thing he -- or I -- would want to do at the first appearance in court is say to the judge: "Oh yes, and these are the other people who should be suing me." In effect, that asks you to reveal in an affidavit who the other prospective plaintiffs are, that's what the defendant in this case is going to be doing.

Hon. C. Gabelmann: This is an opt-out class-action process, so all of the other plaintiffs would be involved in any event, unless they opt out. If the people, the others, fit the characteristics of the class, then they are in, unless they opt out. Given that, all we're asking is the best information. If you don't get it right, it doesn't matter; you just provide the best information as to the number of people who may have a similar cause.

Section 5 approved.

section 6.

J. Dalton: The Attorney General referred us to this earlier when I raised the issue of residents and non-residents, so maybe we can present this scenario. Under

section 6 it is possible to have a subclass of non-residents -- and we have to have to a class of residents, because we don't have an action if we don't. Is it conceivable that the resident class could all opt out of the action once it's underway and that we will end up with what I'd hoped for in the first place: a subclass of non-residents, all in a class, proceeding? Then I'd be happy.

Hon. C. Gabelmann: The member should be a lawyer. He's already thinking of loopholes. The member may have discovered the way in which to achieve his aim; I don't know. But that's what legal training is for: to find these picky little details through which you can slip.

J. Dalton: Even though there may have been a note of frivolity in my question, let's get to the serious aspect of it. If that scenario is possible, would the court allow a class proceeding to proceed when there are no longer any residents of British Columbia as plaintiffs in that action?

Hon. C. Gabelmann: The court can always vary the certification, so it would be a question for the court to determine. When I look at the 11 cases that have proceeded in two years in Ontario, we're not talking about.... This is not going to be a very common occurrence. The answer is that the courts have the jurisdiction to make a variation if they choose.

Section 6 approved.

section 7.

J. Dalton: Just one question: is this

section patterned after the Ontario statute?

Hon. C. Gabelmann: Both the Ontario Law Reform Commission report and the Ontario legislation are the source of this.

Section 7 approved.

section 8.

M. de Jong: I have two questions with respect to subsection (g), and I think this is addressed later in the legislation. With respect to sub-subsection 8(1)(g), if an individual misses the deadline for opting in and they find that they are otherwise running afoul of the standard limitation provisions, have they lost their right of action?

Hon. C. Gabelmann: If they miss the deadline for opting in, they wouldn't be able to be party to the class action. But they don't lose their right to take an independent suit forward.

M. de Jong: Assuming that their individual right has not extended past the individual limitation of action -- and that's my second question for clarification -- can the claim of a plaintiff whose personal limitation period has expired...? Can the right of action be revived by the commencement of a class action? Can they revive their right of claim by opting into a group with a representative plaintiff who still has a right of action?

Hon. C. Gabelmann: The Limitation Act would apply against each person individually, and you can't take advantage of the class action to vary the Limitation Act's impact on you as an individual.

Sections 8 to 11 inclusive approved.

section 12.

J. Dalton: I have a concern about

section 12, and it's not just my concern; the B.C.

section of the Canadian Bar Association has commented at some length on this provision, which deals with management. My colleague from Matsqui has also made some comments about court management and other aspects of it.

I'll read the position -- or the comment, at least -- of the B.C.

section of the Canadian Bar Association on this. It's not very long. They say: "While courts have always asserted their right to govern their own proceedings, we think the open-ended language of section..." -- and in this case it's

section 12; of course, they didn't have the

section number when they were making the comments -- "of the proposed act to be imprudent." They then go on to state what the wording is, which is basically the same wording that we see in front of us. Then they conclude: "Such an unlimited discretionary power granted to the court is not necessary, and could conceivably result in inconsistent judgements or orders that are at odds with the Rules of Court."

Is that a fair comment? Again, what I'm trying to flag here is whether we are inviting the very problems that carefully drafted legislation would avoid, or at least restrict somewhat.

[4:15]

Hon. C. Gabelmann: It's important in class-action proceedings that the plaintiffs who aren't there, and who aren't the representative plaintiff, have the protection of the court. That requires the legislation to give the court additional

[ Page 15232 ]

authority. I recognize what the CBA has said about that; it's our best judgment that this authority to the court is the best way to ensure that the protection is afforded to people who aren't there or represented directly in the action.

M. de Jong: At the risk of incurring the wrath of the member for Powell River-Sunshine Coast, I'll tell the Attorney General what my concern with this

section is. It relates to the business of law. This whole statute is centred around a genuine desire, I think, to decrease the cost of litigation. The business of law generally entails telling the client what the cost of litigation is going to be. The problem with such broad discretionary powers, especially in the formative days when this statute is on the books and being utilized, is that there really won't be a way to anticipate what provisions.... Will there be viva voce evidence? Will we do much of this on the basis of affidavit evidence?

Will the discretion be utilized to vary the questions relating to the compellability of witnesses, and to costs? These are all things.... It is going to be very difficult for the representative plaintiff's lawyer to advise the plaintiff, and for the representative plaintiff to advise others in the class, just what the costs are going to be in proceeding with one of these actions, because they really won't know what the procedure is.

Hon. C. Gabelmann: I guess my first response is that I would expect that many, if not most, of these cases will be on a contingency basis, which I think would eliminate that question. If they're not, there may be some difficulty in predicting -- particularly in the early going -- with some accuracy. It's fair to say that lawyers can't always predict to their clients what a particular case is going to cost.

Interjection.

Hon. C. Gabelmann: Nail it on your wall.

The lawyer in the early going, talking to a client about whether to proceed, is going to have a hard time predicting how many days' trial it's going to take. You may be more likely to predict the amount of research time, but can't anticipate what all of the arguments are going to be until you're into it. There's disclosure and whatever, and then you begin to get a sense of the costs. I don't practise law, obviously, but I assume that is always a question -- what it's going to cost. In the early going it will be less clear than it will be in the later going, and I acknowledge that.

Section 12 approved.

section 13.

M. de Jong: A simple question: does this mean that individuals who don't want to be part of the class run the risk of having their action stayed unilaterally?

Hon. C. Gabelmann: I may not have caught the question. If the member is asking about someone who has opted out and the class action is stayed, that opted-out individual doesn't lose their right to proceed independently.

M. de Jong: That's one scenario, and I appreciate the Attorney General's answer. This also seems to contemplate, though, a circumstance where there may be an individual plaintiff who has never been a member of the class and has commenced a separate action, but who empowers the court to say: "I am going to hear this as a class action, and I'm going to stay any other actions relating to this issue or this circumstance."

Hon. C. Gabelmann: I hope that the appeals

section would address the question, in

section 36(2). If a representative plaintiff does not appeal, then any member of the class or subclass may appeal.

M. de Jong: The Attorney General is correct. That mechanism exists. I just want to verify that the court -- dealing with a class action over there and an individual action over here -- would be empowered to stay the individual action.

Hon. C. Gabelmann: The answer is yes, as long as we're understanding each other: that we're talking about an independent action that is related to the class proceeding -- not part of it, but related. It's the same issue that's being litigated. The answer is yes, as long as we understand what the question was. I think we do.

M. de Jong: That is my understanding. The second part of that question, then, is: if I am the individual plaintiff whose action has been stayed on a matter related and similar to an existing class action, is the effect of that stay to remove my right of action? Or do I now have the option to join the class action?

Hon. C. Gabelmann: Again, I want to make sure we've got the question right, otherwise we may leave the wrong impression with the answer. Is the member asking me that if the entire class action is stayed...?

Interjection.

Hon. C. Gabelmann: No. Okay. That's where I got....

Interjection.

Hon. C. Gabelmann: Then the member should tell me what he's talking about in terms of a stay.

M. de Jong: Let us take this scenario, where there is a class action that is proceeding along normally; there are, however, other individual actions taking place separate and apart from it. This

section suggests to me that the court hearing the class action could say -- I think the Attorney General gets the point of the question now -- for whatever reason: "I'm imposing a stay on the individual actions."

Hon. C. Gabelmann: The answer to that is no. These are not related actions in the scenario the member is describing.

M. de Jong: That's the answer I wanted to hear from the Attorney General, but then I'm not sure what the

section does do.

Hon. C. Gabelmann: The member and I were exchanging.... The discussion was around a class action here, and over here a series of independent actions. What this

section deals with is that within the class action there may be a series of issues, some of which, if they're related, can be stayed.

[ Page 15233 ]

Section 13 approved.

section 14.

J. Dalton: My colleague from Matsqui has made the point on several occasions about the role of the judge and the courts in this ground that we're breaking into. Under sub (3), the judge who hears applications under the previous two subsections need not preside at the trial of the common issues. I don't recall seeing anything in the Attorney General's consultation document, but has there been any discussion about whether a judge should be seized of the action, and is there any experience from other jurisdictions where that may be the provision?

Hon. C. Gabelmann: I understand that there is an immense amount of common law on the question of seizure and where the judge is seized of the case, and that common law would apply to this legislation.

Sections 14 and 15 approved.

section 16.

M. de Jong: This will probably come up for discussion later when we get to the issue of cost. Maybe I'll just signal the Attorney General that I see this as one area where there may be difficulties with the question of cost, where members of the class decide to opt out or opt in. But let us take, from the plaintiff's point of view, a pessimistic approach, where the case seems to be coming off the rails, people start to opt out and the potential exists for a finding of costs against the plaintiffs or the class.

It would hardly seem fair if individuals avail themselves of the class provisions, ride the train as far as they want to go and then get off. Then a representative plaintiff is left holding the bag if there is an award of costs against the plaintiff.

Hon. C. Gabelmann: There would be a fixed time frame set by the court in which people have the right to opt in or opt out, depending on the circumstances of the case. Following that time period, you're either in or you're out, and there's no changing horses at that point. The answer is that the court will establish an appropriate time frame. People are not likely to be left holding the bag, because the time frame will be established in an appropriate way.

M. de Jong: I read somewhere -- and I don't recall where in the bill -- that the court will entertain applications at just about any stage to either opt in or opt out. Am I correct that it would be at that point that...? If I as a member of the class decided that I wanted to opt out at the last minute, would the issue of costs be considered at that point?

[4:30]

Hon. C. Gabelmann: In the certification order, it will be clear as to what the time periods are for opting in and opting out. Everybody knows right from the beginning what those are, because it's in the order, so the option for a last-minute opting out wouldn't occur.

Interjection.

Hon. C. Gabelmann: By application it should?

Interjection.

Hon. C. Gabelmann: Is the question: could they apply to opt out, let's say, outside the time frame? I suppose anybody could make an application to do whatever. But does this act provide an opportunity to make an application outside the time frame in order to opt out? The answer to that is no. I don't know where the member read it.

Section 16 approved.

section 17.

M. de Jong: Just reading my notes, the note I have here for a question is: is there another example that the Attorney General can think of with the onus falling to a defendant to establish why he or she should have the right discover a plaintiff? The

section says that if the defendant wants to discover anyone other than the representative plaintiff, he or she has to make application to the court. I suppose my argument to the Attorney General would be that if a notice has gone out to individuals saying that they are invited to join a class that is involved in litigation, and an individual decides to join that class and is now known to be a member of that class, why would the defendant be obligated to apply to discover that individual if they have volunteered themselves to the process? My argument to the Attorney General would be that it is contingent upon them being available to be discovered.

Hon. C. Gabelmann: We're just looking at the Rules of Court. The procedure exists now -- I just can't quickly find the right

section of the Rules of Court -- where in fact there is a discovery available to both parties. It's limited to one each. What we've tried to do with this legislation is mirror that procedure; we're not breaking new ground with that point here. I haven't quite found the rule of court here yet, but I think the member knows the issue.

M. de Jong: I think the Attorney General is correct. The established practice would be that a plaintiff is entitled to discover a defendant, and a defendant is entitled to discover a plaintiff. But in this case we're saying that we're going to have a class of plaintiffs.

Hon. C. Gabelmann: I think I can better explain this by reference to "Examination of a Corporation," which is rule 27(6). The rule is: "Where a corporation" -- and in a sense that is similar -- "is a party, it shall disclose the name of a person to be examined who is knowledgable concerning the matters in question in the action." So that principle is the one that we've adopted for this legislation. Maybe once we do this

section .... I think we have gone past our time.

Section 17 approved.

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

Motion approved.

The House resumed; the Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

[ Page 15234 ]

Hon. C. Gabelmann: Committee on Bill 9, hon. Speaker.

WATER PROTECTION ACT

The House in committee on Bill 9; D. Lovick in the chair.

section 1.

M. de Jong: I am referring to subsection 1(3), which contemplates a dispute regarding the determination of a watershed, or whether water emanates from a particular watershed. I'm wondering, in addition to the information contained there, if the minister can offer some advice as to the process that would be undertaken to render that determination.

Hon. E. Cull: I apologize to the member. As we were all getting my staff in here, I was looking for the section, but I missed the question he was asking. It is subsection 1(3). Perhaps he could just clarify.

M. de Jong: I was just querying the minister as to the process that she envisaged being followed in rendering a determination, where a dispute about source and watershed occurs.

Hon. E. Cull: The comptroller, obviously, under this

section has the responsibility to make the determination. He would look at the hydrological evidence and make a decision. There is not a specified process in terms of regulation, or set out anywhere, but the comptroller would examine the evidence and, under his or her authority, make the decision.

M. de Jong: I'm wondering, then.... Would it be the minister's expectation, though, that the comptroller would not render a decision without first entertaining submissions from the applicant?

Hon. E. Cull: That would be a reasonable assumption, that submissions from the applicant would be sought.

J. Tyabji: With respect to the different categories of the unlicensed and the licensed registrant, we see throughout the Water Protection Act that there are a number of different categories. As I understand it, some of these have evolved with the unlicensed registrant's use of groundwater. I'm not sure if that's the case, but I was wondering.... First of all, I don't believe the House has met the people who are in the House today. I wouldn't mind meeting them, because I think they're new faces.

But after that I'd like to know where the categories evolved from and what the reason is for keeping them that way -- for example, why there would be an unlicensed registrant, as opposed to setting up that category in the registered licence group.

Hon. E. Cull: Again, in the confusion of getting started here, I did neglect to introduce my staff. With me we have Lynn Kriwoken, Gary Robinson on my left and Jim Grieshaber-Otto on my right.

Now, the reason there are two categories is that surface water has been regulated and licensed, so there are licensees related to surface water. But groundwater is not licensed, so we have unlicensed registrants in the groundwater category. That's why there are the two categories.

J.

Tyabji: Perhaps it's my own confusion, but when the discussion paper was put out a few years ago under the predecessor to the minister's predecessor, who is now the Minister of Aboriginal Affairs, at that time it appeared from the public input -- I guess it was about a two-year process of White Papers -- that they wanted to have licensing of groundwater users, and in addition to that, an inventory made of groundwater to see, firstly, how much was available; secondly, how much was being used historically; and thirdly, I guess, where we were going to go with the use of groundwater and if it was going to be expanding at a certain rate.

So in bringing in the Water Protection Act after almost four years, why was the decision made to continue to have a category where people could access groundwater without obtaining a licence, rather than bringing groundwater users into a licence category and having what I would think, anyway, is a more thorough way of tracking their use of groundwater?

Hon. E. Cull: As the member no doubt recalls, there was a very broad and diverse discussion with the release of that particular paper, and a lot of discussion around groundwater in particular, and whether it should be licensed, how and under what circumstances. This legislation represents a first step, and it does not put in a regime for licensing groundwater. We continue to discuss groundwater issues with stakeholders, and we may subsequently take second and third steps to deal with that.

[4:45]

J. Tyabji: When the minister talks about stakeholders with respect to groundwater, are we talking about commercial, industrial and agricultural users, or are we talking about a broader discussion in a continuation of the White Papers that were published three years ago?

Hon. E. Cull: We're talking about a broad discussion with the people of the province who have an interest in this issue -- certainly not just commercial users or those who use it for industrial or agricultural purposes, but also the broader interest of the public in the matter.

J. Tyabji: For my purposes, are the three people who are accompanying the minister today the people who would be administering the Water Protection Act after it's passed? Are they also involved in aquifer management, or are they from a broad background in environment?

Hon. E. Cull: Gary Robinson, who I introduced earlier, is with the water protection branch. The other staff are involved in the policy and legislative end of the decision-making.

J. Tyabji: Could the minister tell me, then, about the unlicensed registrants? Is there going to be within this act a policy that allows people to continue to become registered as unlicensed users of groundwater? Right away, when you see an unlicensed registrant, it's almost a contradiction in terms: if they have registered, why don't they get licensed? Then, of course, we have a licensed registrant, a registered licence and an unlicensed registrant -- just in the

definitions section. It would seem to me to be a lot easier to have made a bit more significant step and force people who use groundwater to become licensed.

But since this is a first step and that wasn't the decision taken, is there going to be some sort of control measure so we

[ Page 15235 ]

don't have an unrestricted expansion? Before, as I understand it, people could subscribe more or less at the local level as unlicensed registrants on groundwater. For example, if a community allowed a subdivision, and the subdivision was developed and they had access to groundwater, it was at that level that the decision was made whether or not they would tap in. But it's at the provincial level where a decision -- a policy decision -- is made about whether or not there will be an inventory done of available groundwater.

As I understand it -- and the minister or her staff may have a better idea of this -- it was only a couple of years ago that the first pilot project test was done on inventory in the Gulf Islands for aquifer use to determine how big a base it was, the rate of depletion and the rate of renewal.

When I see a category that says an unlicensed registrant will be dealing with groundwater, I guess I'd like to know that in the Water Protection Act there's going to be some serious protection of groundwater, and perhaps even a policy initiative to accompany this section, so that people are protected and we feel like there actually have been some major steps taken on aquifer use and monitoring of aquifers.

Hon. E. Cull: As I said a minute ago, Bill 9 is simply the first step in the process of renewing the province's water legislation in accordance with the 1993 paper, "Stewardship of the Water of British Columbia." As it relates to groundwater, the legislation confirms the ownership of groundwater in the province, which is an important first step to enable better management of the type that the member is discussing. But at this point, it's only going to be regulated to the extent that it can't be removed from the province in bulk supply.

So we have to acknowledge the fact that there are people who are removing groundwater, and we want to start to create a system of registration so we have better information about who they are, where they are and what they're doing so that we have an ability -- and this definition enables that ability later on in the legislation -- to then be able to regulate the extent of the removal of groundwater in bulk supply.

J. Tyabji: If I could say two things that I don't see in the

definitions

section which I think might be helpful -- and perhaps in the next step we can consider that if there is going to be.... Now that we have confirmation that the Crown owns groundwater, it would be a good idea to design a system where the Crown more or less insists that local government tie into a provincial registry, first of all, of how much is available and how much is being used.

And the other definition that's missing from here is the definition of sustainability. The reason I think that's important is that that was the whole issue in the White Paper to begin with. It's a word that is maybe overused in B.C. We could have in here, I think, a formula for sustainability of groundwater, something to the effect -- and I'm the not the expert; you have them sitting with you -- that would say that sustainability is defined as not going beyond the ability of an aquifer to renew itself, not depleting beyond the rate at which an aquifer renews.

If that were in here, then I'd have a better assurance that the groundwater was going to be protected. That's something that I put forward for the next step.

In the "major watershed" definition, I note that we're talking about areas that are draining into the Fraser River and its tributaries. Again, we're talking about surface water. Is it understood that the major watersheds include the aquifer drainage systems or the groundwater drainage systems? If it is, would it be possible to put in a friendly amendment that would at least acknowledge that it is not the intent of the bill to have those underground watersheds included in the definition of the major watersheds?

Hon. E. Cull: Let me make a start at this question for the member. The definition of the watersheds do include the aquifers, but there obviously may be situations where aquifers cross the boundaries of watersheds, which is why we need the

section that allows the comptroller of water to determine exactly what the boundary is in case of some dispute or there not being clear information as to where it is.

J. Tyabji: I'm having a hard time hearing. It's a big chamber -- two sword-lengths and all that.

Aquifers are understood to be included in major watersheds. Could the minister tell me, for the purposes of practice, whether or not the

definitions contained in this act will cross-reference to the Water Act with respect to pollution control or any of the provisions in the Water Act? The Water Protection Act deals primarily with the movement of water, but in the definition of watersheds, there could be some protection of water. In the Water Act currently, there are provisions against pollution and contamination and those kinds of things. Is there any carryover?

Hon. E. Cull: Being mindful that we're dealing with the definition section, I'll just draw the member's attention to subsection (2), which does state that the Water Act

definitions have the same meaning in this act.

J. Tyabji: Did the minister say that they have the same meaning as in the Water Act or that they will be applicable in the Water Act?

Hon. E. Cull:

Section 1(2) says: "Unless the context requires otherwise, words and expressions used in the Water Act have the same meaning in this Act" -- in Bill 9.

J. Tyabji: Actually, what I was asking was: will the words and

definitions in this act apply to the Water Act -- the other way around? The major watersheds as defined here are not defined in this way in the Water Act.

Hon. E. Cull: No, you couldn't take the

definitions from this act and have them apply to another act without amending the other act.

J. Tyabji: Could I recommend that we amend the Water Act to allow the

definitions for watersheds? The reason I would say that is that since we now know that aquifers are implied in the watersheds, we know the Water Act is one of the ways in which we can prevent industrial contamination of watersheds. The definition of the watersheds that appears in the Water Protection Act is a much better reference than we have in the existing Water Act to protect the watersheds, especially if it includes the aquifers. That would be a recommendation that I would make. With that, I'm finished with the

definitions.

Section 1 approved.

section 2.

[ Page 15236 ]

J. Tyabji: Going back to the definition of sustainability, which I would have liked to see in

section 1, could the minister define the sustainable use of British Columbia's water for the record?

Hon. E. Cull: The use is not defined, but the commonly accepted definition of sustainability from the 1987 World Commission on Environment and Development -- the Brundtland report, as it's more commonly known -- is the definition that we would be using. Sustainable use is ensuring that we meet the needs of the present without compromising the ability of future generations to meet their own needs. The Brundtland report definition is the definition that we used in terms of sustainability.

J. Tyabji: Would the minister then believe that sustainability could also be defined as not having any net loss over a long period of time if there's a short period of use? That again goes back to aquifers. The reason I'm asking this is that in the United States -- as the minister and I'm sure her staff know -- they had a problem with the Ogallala aquifer: they depleted it at a non-sustainable rate. That's one reason that there's so much pressure for us to provide our water resources to them. I just wouldn't want us to repeat the mistakes that have been made in the United States. I would hope that sustainability means that we will not be depleting it at a non-renewable rate.

Hon. E. Cull: That's certainly the intention.

J. Tyabji: As we go through the act, there are some points that can be raised in debate about the Crown's role in the use of water. If it turns out that the Crown becomes an agent for the licensing of water exports or water use -- and the Crown could also refer to B.C. Hydro and the large-scale water flushing that often goes on to the United States -- I would assume that the Crown could be liable under

section 2 of this act. Is the minister's intent, after this act passes, to make sure that

section 2 of this act is being applied to Crown agencies such as B.C. Hydro?

Hon. E. Cull:

Section 2 is a purpose section, so I'm a little unsure of what the member means when she asks if it will be applied to Crown agencies. The Crown is saying through this legislation that this is the purpose of the legislation; it's the purpose of the government to foster sustainable use of British Columbia's water resources. The government would expect all Crown agencies to support that purpose, but we would expect all organizations and individuals to honour that purpose. Other provisions of the act would provide for the government to take action. You can't take action against the purpose of the legislation.

J. Tyabji: If the minister seems a little bit confused by the question, the reason I asked it is that a couple of years ago when there was a serious drought -- we may face the identical conditions this summer -- B.C. Hydro, which is a Crown agency -- and I think the member for North Vancouver-Seymour was the one yelling about this the loudest that year -- authorized the flushing of Lake Koocanusa to the point where the fish that were stocked from government stocking tanks were killed off because of the river levels that were left.

[5:00]

It would appear to me that in order for the purpose of this act to have any meaning whatsoever, the government would have to be prepared to ensure that activities sanctioned by this government in the past -- by this government, not by a previous government -- would no longer carry on. And just so we don't waste our time debating a bill that the government is not going to enforce on its own Crown agencies, I would want to know that the purpose of this

section would introduce a new sustainability provision in the exercise of agencies like B.C. Hydro, which are, in effect, in control of the movement of large reservoir containers of water. We know that Williston Lake has a problem. I would actually welcome the.... The member for North Vanco