2014 Legislative Session: Second Session, 40th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

official report of

Debates of the Legislative Assembly

(hansard)

Tuesday, April 29, 2014

Afternoon Sitting

Volume 11, Number

ISSN 0709-1281 (Print)

ISSN 1499-2175 (Online)

CONTENTS

Page

Routine Business

Introductions by Members

Orders of the Day

Committee of the Whole House

Bill 17 — Miscellaneous Statutes Amendment Act, 2014 (continued)

Report and

Third Reading of Bills

Bill 17 — Miscellaneous Statutes Amendment Act, 2014

Committee of the Whole House

Bill 18 — Water Sustainability Act (continued)

S. Chandra Herbert

Hon. M. Polak

C. Trevena

G. Holman

B. Routley

V. Huntington

Report and

Third Reading of Bills

Bill 18 — Water Sustainability Act

Committee of the Whole House

Bill 19 — Animal Health Act

N. Simons

Hon. T. Lake

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Education (continued)

Hon. P. Fassbender

R. Fleming

J. Kwan

G. Heyman

A. Weaver

J. Darcy

G. Holman

D. Eby

K. Corrigan

[ Page 3231 ]

TUESDAY, APRIL 29, 2014

The House met at 1:32 p.m.

[Madame Speaker in the chair.]

Routine Business

Introductions by Members

Hon. S. Bond: I would like to introduce someone from Prince George, actually, and he's here this afternoon. He's been acting as the interim president of the College of New Caledonia. He has a strong interest in the trades and technology, making sure that northern students have the opportunities that they need and deserve, and he's provided strong leadership in a time of transition. I'd ask my colleagues to make Bryn Kulmatycki from the College of New Caledonia very welcome to the House today.

Madame Speaker: Hon. Members, I, too, would like to make mention of an individual visiting today — Michael McCoy, this afternoon receiving the British Columbia Achievement Award. He's the executive director of Touchstone Family Services in Richmond, and he's made an enormous contribution to the health and welfare of young folk in the riding of Richmond. I would ask the House to please make him welcome.

S. Chandra Herbert: I, too, would like to welcome Michael McCoy. I understand that he is a constituent, though I've not had the same privilege and pleasure as the Speaker has to meet with him. I hope that we can do that soon so that I, too, can get the benefit of his knowledge and work that he's been awarded for.

Orders of the Day

Hon. M. Polak: I call continued committee stage debate on Bill 17, and in Committee A the continued estimates of Education.

[1335]

Committee of the Whole House

BILL 17 — MISCELLANEOUS STATUTES

AMENDMENT ACT, 2014

(continued)

The House in Committee of the Whole (Section

B) on Bill 17; M. Dalton in the chair.

The committee met at 1:36 p.m.

Sections 150 to 159 inclusive approved.

Title approved.

Hon. S. Anton: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 1:38 p.m.

The House resumed; Madame Speaker in the chair.

Report and

Third Reading of Bills

BILL 17 — MISCELLANEOUS STATUTES

AMENDMENT ACT, 2014

Bill 17, Miscellaneous Statutes Amendment Act, 2014, reported complete without amendment, read a third time and passed.

Hon. M. Polak: I now call committee stage debate of Bill 18, entitled Water Sustainability Act.

[1340]

Committee of the Whole House

BILL 18 — WATER SUSTAINABILITY ACT

(continued)

The House in Committee of the Whole (Section

B) on Bill 18; M. Dalton in the chair.

The committee met at 1:42 p.m.

The Chair: When we were in session last, we were on

section 10.

section 10 (continued) .

S. Chandra Herbert: Good to see the minister and the able staff back. It's been a while. Here we go again for a wonderful journey down the Water Sustainability Act.

We're now on

section 10. In this section, before we left off, we were discussing short-term approvals of water use and how in some cases they've been extended into really long-term approvals of water use with multiple approvals of the same short-term use for years upon years.

That has raised a number of concerns in communities asking: "Why don't we just push groups to do long term — seek water leases, water removals, permitting?" I think the reason they argue for that is there's a greater degree of public information shared.

I certainly think that we should make sure the public has the greatest degree of information about their water and that the permitting process is done in such a way

[ Page 3232 ]

that adequately consults First Nations people, community groups, people in the neighbourhood and, as well, that considers and supplies the public with the greatest degree of information about how this is being done in a sustainable way so that they can feel confident that their water is protected by their government when putting out short-term water approvals.

I was curious: what kind of consultation — and if I asked it already, my apologies — went into this change? Or did the government feel no consultation was required because it's basically the same as it is now?

[1345]

Hon. M. Polak: Actually, a lot of thought has been given as to why one would choose, in some circumstances, to grant a short-term water use as opposed to a long-term licence. I would venture to say that those who are concerned about the repeated issuance of permits would be even more concerned if these same interests were able to attain a long-term water right.

I say that because one of the important aspects of managing water is the issue of who has a right to use it, a long-term established right. The member will know from having looked at this legislation that the idea of who has a right to water is all the way through it. First-in-time, first-in-right is one of the most substantial aspects to our water law in British Columbia. So, very important that we maintain the granting of a long-term water right to those circumstances where that would be appropriate.

While these are issued repeatedly, their length of time is limited to 24 months, thus their right to the water is limited to that 24 months,

whereas the licences would grant a much longer-term water right.

With respect to the consultation, this particular

section of the act doesn't change current practice. It remains the same. There wasn't any direct consultation, as it is current practice as we speak.

S. Chandra Herbert: Well, I'm sure some people would be concerned about a longer-term right as opposed to a short term. But what I hear from people is more concern that short term provides less information for them in terms of what the applicant provides —what they need, what they're doing, who they are and that kind of thing — as well as less information available to the public in terms of if there is actually water being taken, for what, by who, where, when, how much — a variety of that kind of information.

People are concerned that short-term approvals provide less transparency to the public. Maybe what would help — and this is not an amendment or a legislative change necessarily, but could be — would be if the minister would agree to share the same amount of information on their website that they do when a longer-term right is given. Is that a possibility? That seems to be the main concern I'm hearing from people — that they don't get the information with short-term approvals that they do get with longer-term ones.

[1350]

Hon. M. Polak: The member will be aware, I'm sure, that there are a number of areas where we just don't have the technological capacity that other organizations might. I speak here with respect to short-term water uses that are approved through Forests, Lands and Natural Resource Operations. They are not in a position to be able to post those.

On the other hand, with the Oil and Gas Commission, while they don't post the applications, they do post all the short-term water use permits that are granted. It's worth noting that the statutory decision-maker in the case of OGC — or, indeed, in the case of FLNRO — always has the option to ask for either additional information or to ask for consultation to occur. That is within the discretion of the statutory decision-maker.

I should just take a moment, because I didn't do it before, and just introduce my staff. I have, to my left, Ted White, manager of water strategies and conservation with Ministry of Environment; and on my right, Donna Forsyth, legislative adviser in Ministry of Environment; and behind me, Valerie Cameron, who is manager for water stewardship in the Ministry of Forests, Lands and Natural Resource Operations.

S. Chandra Herbert: I'm not sure why the ministry doesn't have the capacity. Is it a funding issue? What's the reason? Technologically, I wouldn't think we couldn't just put it on a website somewhere that people could easily search, given how easy it is to do that kind of stuff these days. What would be the reason why the ministry can't do that?

Hon. M. Polak: It's just a matter of old technology. It's one thing to post something on a website. Certainly, we have the capacity to do that. But one has to gather the information in a way that would make it possible to upload it with some ease. If you are instead in the development of that data, if you're using pen and paper and you're doing this all around the province, it makes it pretty difficult. It's not as simple as simply uploading some data. We're getting there. It's our intent to get there ultimately, but we're not there yet.

S. Chandra Herbert: The Oil and Gas Commission does some of that work. Forests, Lands and Natural Resource Operations does some. The Ministry of Environment, I guess, also receives information around this.

It just seems to me that it's kind of funny that we've got all these different pockets of information. It would be nice if we were able to understand that we've got one cohesive place to go. If you care about water, this is the place

[ Page 3233 ]

you go to see what the province is doing to the water or is leasing the water or is protecting the water. This is your source. Multiple jurisdictions and multiple responsibilities sometimes lead to no responsibility or sometimes lead to conflicting decisions, unless you have a certain amount of collaboration between the two.

The use approval that's referred to in this section, which can be issued…. Surely, there's an e-mail that goes to somebody who has applied for a short-term water licence where they receive their use approval. Can that be made available on the website at the very least? It's electronic. I'm sure the ministry doesn't use pen and paper anymore to do this. Can we make sure that gets up there?

I'd rather that people know that an application is being made so they have a chance to say if they like it or if they don't. But it seems the ministry is not willing to do that. Can they at least let the public know about the short-term approvals?

Hon. M. Polak: I'm sorry to advise the member that, in fact, people don't receive an e-mail. They actually receive a physical letter.

[1355]

Across the natural resource ministries we are working to try and get to a place where we have things web-based, where we're able to upload data with ease. Our ministries, such as Environment; Forests, Lands and Natural Resource Operations; Energy and Mines — any of the permitting ministries…. It is remarkable the amount of data that passes through our ministries on a day-to-day basis. Currently, with the level of technological support we have, it would just be impossible.

It has nothing to do with willingness. The permits that are approved are public documents. We just don't at this stage have the capacity to post them on line. But they're public documents. We don't keep them secret. As I say, our intent is to get to the place where all of this information, with respect to which permits have been granted, is available to people in a much easier means.

Currently we actually do send a physical letter, not an e-mail.

S. Chandra Herbert: I'll try once more. I understand that you can send a letter, but surely the minister doesn't hand-write the letter. It's probably done on a computer, and that computer has the ability to very quickly attach a file to a website, and it's right there.

Maybe I'm being too cute about it, but I think it should not be difficult. It's not technologically difficult to upload a letter that somebody has been sent. I do it on my own website. I could do it myself, and I'm not very good with computers.

It just seems to me that that would be one simple way to increase transparency — not a massive expenditure to hit "attach" and put it on a website by month. It's really not difficult. I think this is needed and should be something the minister continues to look at but should just do. It's really not difficult.

I'm curious. The issuing of short-term water licences. Some have argued that, well, they're meant for short term and shouldn't be, in a sense, rolled over to become long term just under the short-term name. What would be a reason why somebody would need to roll over a short-term water licence again and again and again where they couldn't possibly go through a longer-term process?

Hon. M. Polak: This really comes down to the purpose for which the water is going to be used.

[1400]

We've spoken about the issue of a long-term water right. In fact, I misspoke to a certain extent when I referenced this earlier. The long-term water right is reviewable after 30 years, but it doesn't end. Assuming that the review is sufficient in terms of the applicant's or the licence holder's bona fides, if they've got everything in place, that is a permanent water right.

Now, one only has to consider the types of activities that take place on the land base to quickly understand that there are very many activities for which one would wish to grant a short-term use of water in order not to be granting a permanent right to that water.

For those who are concerned, for example, with respect to water use in the northeast for hydraulic fracturing, I think you'd be hard-pressed to find an individual that would be willing to grant a permanent water right for that activity. So it makes more sense to have a short-term water use permit.

The member is incorrect in saying that these are rolled over. In fact, there's no automatic renewal. The proponent has to reapply. That application is examined anew, and then the statutory decision-maker determines whether or not they grant that.

There are, of course, high-profile activities such as hydraulic fracturing, but there are others that are very low-profile. I think we spoke last time about road dusting, for example. Any use where there is not an interest in the land…. If the proponent does not own an interest in the land, then they would not be able to apply for a long-term licence.

It's also worth noting that there will be more discussion of the discretion and decision-making as we get later into further sections. But I will note for the member at this stage that in

section 14 the decision-maker can also make a finding that, in fact, looking at a short-term water use application, this application would be more appropriate as a long-term water licence. That is considered — as to whether or not the application is appropriate to the particular permit or licence.

Sections 10 and 11 approved.

section 12.

[ Page 3234 ]

S. Chandra Herbert: This

section as well as a number of others were highlighted by Elizabeth Denham, the Privacy Commissioner, raising some questions around wording — in specific, asking why the government decided to use the term "public personal information" in this

section and in many other sections, suggesting that a more common use would be something like publicly available information — concerns that "public personal" was not defined and is not then seen in other acts.

I just wondered if the minister could explain why "public personal information" — that wording — has been used, as opposed to something like "publicly available information."

[1405]

Hon. M. Polak: We did review the comments from the Information and Privacy Commissioner. Our view, in the end, is that this is still the best terminology to use.

The rationale is the following. Firstly, being transparent — letting people know right up front that we will be utilizing personal information. "Public" because we will only be using information that is already available in the public domain.

Now, my first question on hearing that was: what on earth would be personal information if it's already public? It is things like your address, for example. That's public information. Someone can drive by your house. It's available, and they can see it. Nevertheless, it's also personal.

So our view is that in order to be absolutely transparent with respect to how we intend to implement the act and what information we will be gathering, we still believe, upon review, that the term "public personal information" is the best term to use.

S. Chandra Herbert: Can the minister explain where public personal information, in a sense, would be applied? Is it too vast to talk about where this would actually be supplied by an individual? You know, what are we thinking about here that you would need to really be clear to somebody that personal information would be available?

I would assume, maybe wrongly, that many people would understand, when communicating with a government, that they would be putting their personal information, their public information, in a sense, out there if they were asking for a water right or if they were doing something involving water and requiring regulation from government.

Why would this be necessary to really make sure that people knew this? What's the concern that we're trying to deal with here by putting "personal" rather than "publicly available"?

Hon. M. Polak: To be clear, not all the personal information that would be collected in this process would be disclosed. It's not necessarily disclosed. Our view of this is that we need to transparently advise people in the legislation that we will be collecting personal information and that it could potentially be disclosed.

Some examples of the collection of that information would be during the application process. If we need to notify existing water licensees if their rights might be impacted, we need to advise them. Of course, some of that information, such as the location of that application, would be personal, if it's your address. Yet, it's public information.

We need to be able to verify the use once a licence has been issued. Of course, if we were to have to develop a water sustainability plan, in the case of water scarcity, again, that would involve the personal information of individuals or others who have water licences in the area or other water uses in the area.

S. Chandra Herbert: Was this change made because of a specific instance, or was it made just because of a desire to do a good job of making sure people knew that personal information could be shared? What made the government decide to make this change?

Hon. M. Polak: There was no specific instance that triggered this in the design of the act. I know the member is aware that it took many years of consultation, and drafting took an awfully long time.

[1410]

Again, it was felt that this was, in our view, the best description of the collection of information in which we'd be engaged in implementation. Nothing particular triggered it.

Section 12 approved.

section 13.

S. Chandra Herbert: I've had some folks raise concerns about

section 13, saying that they're concerned that this narrows the opportunity for public process, the argument being that the previous Water Act provides process for a riparian owner, licensee or applicant for a licence "who considers that his or her rights would be prejudiced" by the granting of a licence to file an objection and potentially get a hearing.

My understanding is that this process only allows objections to be filed by someone who the government decision-maker has pre-determined may be impacted by the decision. Rather than allowing anybody who thinks that they have a problem with a decision, who is a licensed owner or applicant for a licence, this leaves it up, arguably, for the government to decide who might have a concern and leave out somebody who has a legitimate concern just so that they don't get the right to object. That would be the concern here. Why was this rule brought in

[ Page 3235 ]

or this change brought in? What's the argument for it?

[1415]

Hon. M. Polak: With respect to the right to a hearing, there is no change in practice that will occur as a result of this. What has happened, though, is that we have clarified this from the old

section in the old Water Act. As is the case today, a person who has a licence then has a right to a hearing; a person who does not have a licence would not have a right to a hearing. They still, in either case, can raise objections. They can do so today, and they will be able to do so after this new act is in place.

The difference is the language here makes it clear that the licensees have a right to be notified and also have a right to a hearing. That is the way we operate today. If you look at the old Water Act, it just really isn't very clear that they actually have a right to that. It's what we have been doing, but they wouldn't be able to point to the legislation currently and show that they have a right.

Sections 13 and 14 approved.

section 15.

S. Chandra Herbert: This

section is about environmental flow needs, that environmental flow needs have to be considered in a decision on an application that will affect a given stream or aquifer. The decision-maker can require information from the applicant to make an informed decision as to the environmental flow needs of the stream.

Obviously, this could be very challenging if you are making environmental flow decisions, potentially reducing the amount of water somebody needs for their farm or for their home or for industry. Whatever the case may be, this could be controversial.

Of course, I believe most people would want to make sure that the ecosystems and those species that rely on the water get enough of it. We wouldn't want to leave the environment worse than we found it, although, unfortunately, that seems to be the case right now.

I'm just curious. Who makes the decision around what an environmental flow need is? Is it a peer-reviewed scientific process? Is it ministry staff? Does the public have a chance to make an argument one way or another about what the flow needs are of certain streams or creeks or rivers? How will this be done?

Hon. M. Polak: The statutory decision-maker would rely on the advice of qualified professionals. Usually they are inside the ministry in question — not always.

[1420]

The statutory decision-maker could seek additional information from outside sources if the decision-maker felt that there was more information required — again, completely at their discretion if they wish to seek additional information, additional reports or an additional study.

S. Chandra Herbert: What's the timing for having the environmental flow needs investigated, adequately researched and, I guess, adequately reported to all those that could be impacted? How soon will this actually get going? It is one of the exciting aspects of this bill, but many have wondered whether or not it'll have real teeth or if it'll ever get done, given the challenges for resources in the ministry. So just a timeline would be useful.

Hon. M. Polak: The policy is actually in place now. However, as the member will know, one needs to put in place the appropriate legislative authority, and that's what takes place here. But it's already begun. Staff have already been working with that policy and, indeed, considering environmental flow needs in their decisions.

S. Chandra Herbert: There are a lot of streams, a lot of rivers, creeks and lakes in this province. It will take some time, I think, to do the appropriate science and the appropriate due diligence for environmental flow needs for a number of streams and rivers. In one lower

section you may have very different needs than you do further up the creek or stream, based on what kind of flow from mountains or other areas into a river or a stream.

The policy's in place. What percentage of B.C.'s rivers, streams, creeks does the ministry believe they have adequate data on to decide environmental flow needs, to have the hard numbers in place for?

Hon. M. Polak: It really depends on the individual application and the individual circumstances of that body of water, be it a stream or be it an aquifer or what have you.

The statutory decision-maker would look at the information available. They may decide that with respect to that application in front of them, there is already sufficient information. They may not. It may be a situation where they need to ask for additional assessment.

It isn't, though, always the ministry that will conduct that assessment. It doesn't entirely rely on the staffing levels that we have available. In many cases proponents can employ qualified professionals as well.

S. Chandra Herbert: Yes, the qualified professionals. I had the good fortune of meeting many of them the other day, speaking with the Association of Professional Biology — a very good discussion and also, of course, reflecting on the Ombudsperson's recent report into riparian area regulations and the challenge when 15 to 20 percent of the reports actually provided by those professionals are read, leaving 80 to 85 percent of them unread. There were some interesting conversations there.

I think the challenge with this

section of environmental flow needs is making sure that we actually are

[ Page 3236 ]

adequately taking them into consideration and that the real work has actually been done. Would it be a requirement for any new application that environmental flow needs have to be considered, that a report has to be created? Would that report be available to the public should they ask for it?

Hon. M. Polak: Yes, in fact environmental flow needs will be a requirement for consideration, and the reasons for decision are always public.

[1425]

S. Chandra Herbert: So environmental flow needs will have to be considered. I guess the question is considered…. You could consider it and still say: "Well, forget it. It doesn't really matter."

Is that a risk? Or is it a requirement that the environmental flow needs have to be actually part of the decision, that you're not allowed to make a decision which would disregard environmental flow needs and that you have to include them in how a decision is designed?

Then the follow-up is: can that report on environmental flow needs be made publicly available, as opposed to just a decision — "We agreed to give somebody a licence" — to actually give them the data if they want it?

Hon. M. Polak: The report would be available. I didn't mean to sound obtuse with saying "the reasons for decision." The report would be part of the reasons for decision, so it would be available.

With respect to considerations for a statutory decision-maker, that is the very nature of the statutory decision-maker framework. Legislation, sometimes regulation, provides them with a list of things that they may or must consider. It is then up to the statutory decision-maker what weight they give to various considerations toward their decision.

That is the nature of that process. If it were not the case, then we would not have a statutory decision-maker who is engaged in that. You would have a different process.

S. Chandra Herbert: Thank you to the minister for ensuring that information, that report, would be publicly available. I hope she means not publicly available in the sense that you have to go to FOI and apply and wait for months. She's meaning that if somebody asked, the minister would give it to them. Is that correct? I see her head nodding. We'll make sure that the community knows that — and it's nodding in approval, not nodding in opposition to the idea.

I think the challenge here is that…. The minister knows that somebody — and it's happened before — could come forward, hire a qualified professional to do the work. Most qualified professionals do the work in the best way possible with their best knowledge. However, some may — and in the past they have — sometimes produce work that is really not as good as it should be, that may look a little more favourably towards a company's interests as opposed to a public interest in terms of protecting fish or other things.

That does happen. Sometimes people feel pressured to do good by their employer, even if that slams up against their personal ethical conduct and code.

What percentage of these reports will be read? Will they all be read by the ministry, these environmental flow reports, and considered?

Hon. M. Polak: Because it's an application process that must be adjudicated, each and every one would be read and reviewed.

S. Chandra Herbert: Well, one more question on this just because it is such an important

section and, of course, flows through — there; another water allusion — the rest of the act.

I guess the staff that the ministry supplies to do this work or the qualified professional that does this work, because it's not always one or the other…. What kind of requirements are made in terms of qualifications? In terms of: does it have to be a biologist? Could it be somebody who works for a company that has a biologist?

You know, we want to make sure that top-quality science is used in this and by qualified people. I just want to make sure that we are, in fact, getting the reports from the best of the best. So the qualifications of those that would provide such reports would be useful.

Hon. M. Polak: We do have the regulatory authority to designate which professionals would be engaged in that, and so it will not show up specified in the act, but certainly, as is practice amongst all the ministries that receive reports from qualified professionals, we certainly ensure that the right professional is attached to the right type of analysis and reporting.

[1430]

Sections 15 and 16 approved.

section 17.

S. Chandra Herbert: This allows cabinet to designate some streams, through regulation, as sensitive streams, introducing additional and more stringent rules related to environmental flows. I wonder: do we currently have sensitive streams designated? How many? And what kinds of more stringent rules related to environmental flows could be brought in?

[R. Chouhan in the chair.]

Hon. M. Polak: The Water Sustainability Act brings together a number of other acts. This is one of those oc-

[ Page 3237 ]

casions. This language is from the Fish Protection Act, updated to a certain extent. It's the same effect as what is currently in the Fish Protection Act.

S. Chandra Herbert: I support this. I think this makes sense. I think that the challenge is long term. If we're going to do things like consider compensatory mitigation measures if a stream has some impact somewhere else, it is making sure that the stream actually long term does become healthy again — if there was some sort of damage and mitigation was required — so that the fish health and number of fish or aquatic species actually come back to the same rate they were at before.

The Ombudsperson's report made it pretty clear, as other biologists and others have pointed out, that sometimes you can do your best. You can say: "Here we have our plan. We've done it. We put it in place." But things change. Budget priorities change. Ministers change. Governments change. People retire. Five years down the road the follow-up work may not be done. Ten years down the road the follow-up work may not be done.

Sometimes compensatory mitigation measures, while they look good at the start, do not actually adequately mitigate damage to a sensitive stream which may have had some issues due to human impact or industrial impact, whatever they may be. What's the process for designating sensitive streams, and how do we ensure long term that compensatory mitigation measures are actually compensatory, as opposed to negative, in terms of the health of an aquatic ecosystem?

[1435]

Hon. M. Polak: I'll deal with the proactive, the listing of sensitive streams. The process whereby streams are deemed as sensitive is outlined in the sensitive stream regulation, which is alive under the Fish Protection Act. As we develop the regulations for the Water Sustainability Act, we will be updating those regulations to reflect the same as you would have seen in the Fish Protection Act.

S. Chandra Herbert: I realize that some of these questions could have been asked in

section 16, not just

section 17, but I appreciate the minister's latitude.

Compensatory mitigation. It's an interesting argument. It's an interesting thought — the idea that maybe you draw a lot of water from one area, which maybe drops that

section of the stream or the river, and in an effort to try and mitigate the damage, maybe you add a bunch more water further down the watercourse. Maybe that's too elementary, but I'm just trying to visualize what this could look like.

We humans have an interesting way of assuming that we know how to change nature in a way that will benefit nature or that we totally and fully understand the natural systems that we like to play with and that we rely on. History, of course, has shown us that sometimes we get it right. Sometimes we get it disastrously wrong and clearly don't understand the natural systems because they're too complicated for our big brains. It's something that I think we need to approach with caution.

Certainly, I understand in the legislation that the idea is if there is an equivalent water source "reasonably available" to the applicant, that the application relating to the sensitive stream could be rejected. What would be "reasonably available to an applicant"? Of course, some will say: "Well, it's right next to me. This is as reasonable as you can get." But that would damage, maybe, a fish-bearing stream,

whereas you have to spend a chunk of money to get water from somewhere else. They may say: "That's completely unreasonable."

What's the guiding line here? If it's a sensitive stream, I think we need to protect it as a sensitive stream and not rely on compensatory mitigation.

[1440]

As we've seen within B.C., some of our best-laid plans have been shown to be massive failures down the road, and while we can say the conditions were not met, if the fish are gone, the fish are gone. If the stream is damaged, it may cost a lot of money to bring it back to health even if we have those conditions because, of course, those should be the last-ditch efforts, not the first line of defence.

Hon. M. Polak: With respect to the first part of the member's commentary, he's absolutely right. We don't know with any certainty when we grant a licence that things will unfold in the ways that have been predicted, even by eminently qualified professionals. That's one of the reasons the act is structured in this way — to provide for that ability to respond in the case of changing circumstances.

With respect to the determination that the statutory decision-maker will have to arrive at in terms of the proximity of a stream, there will be policy guidance developed in the regulations. Certainly, that will be needed. Ultimately, though, it still will be at the discretion of the statutory

[ Page 3238 ]

decision-maker, looking at the individual circumstances and of course looking to the science to, hopefully, show with some clarity what the impacts would be and be able to predict them with some degree of reliability there. It is, though, the discretion of the statutory decision-maker, and as I say, policy guidance will be developed in the regulations.

S. Chandra Herbert: For sensitive stream mitigation and for environmental flow needs, those kinds of things, when somebody applies — again, similar to my earlier question — if it is an application to use a sensitive stream and the statutory decision-maker decides that there is not an equivalent water source reasonably available and instead allows the use of the sensitive stream, I'm assuming that approval would also be included in the water licence that becomes public on the ministry website so we get an understanding that this is a sensitive stream that's involved. What level of detail is provided?

[1445]

Hon. M. Polak: It wouldn't be specified or outlined in the licence itself. It would be available information in the rationale for the decision.

S. Chandra Herbert: How many staff members are currently involved in doing sensitive stream mitigation discussions within the ministry versus qualified professionals outside? A rough approximation would be useful.

Hon. M. Polak: It doesn't happen very often. Because the process is quite onerous when one wishes to draw from a sensitive stream, people tend to avoid them. To give you an example, the lovely Valerie behind me has been doing this since 1989. She's never had to review an application on a sensitive stream. It doesn't happen very often.

S. Chandra Herbert: I guess this is creating a process for something that happens rarely but is still important, I think, to have in place.

When we talk about the information required from an applicant if they were to do something like this…. Really, there's a range of things in the act which you would either expect, I guess, a ministry staffer, scientists or a qualified professional…. What is the minister's definition of a qualified professional? I know there's been some concern from professional biologists, technologists, science technologists and others that it's not adequately addressed in the bill, and they're concerned that they could potentially be, I think, cut out of this work, as it's not explicit.

Hon. M. Polak: Not with any hint of trying to be difficult but actually trying to help move us along, we might be better discussing that in

section

Section 17 approved.

section 18.

S. Chandra Herbert: In the interests of moving us along, I'll ask another question. This is around quick licensing procedures. West Coast Environmental Law has actually raised some concerns around this, arguing that it narrows the opportunity for public process, their argument being that basically this change makes it so these quick licences cannot be appealable to the Environmental Appeal Board.

I just want to understand why. Certainly, we all know that people can make mistakes, and having an appeal process seems to me, at least on the surface here, to be a good thing and not something that the government should be considering taking away from the public.

[1450]

Hon. M. Polak: Firstly, the appeal provision or lack thereof is not a change. That exists in the current Water Act. Secondly, this is, of course, to do with low-risk applications where we know that there's an awful lot of water available and that the particular activity is…. It's fairly straightforward that it will not have a negative impact. For example, an application to irrigate that draws from the Fraser River. A Fraser Valley farmer wishes to draw some water from the Fraser River for irrigation. It would not need the same kind of rigour as on a very small stream that's heavily used by others for a large allocation.

Section 18 approved.

section 19.

S. Chandra Herbert: This relates to licences for power purposes. I understand my colleague may have a question on this, so I wanted to give her that opportunity.

C. Trevena: I didn't stand up because I'm not sure whether it's this

section or

section 22 that I need to be asking the minister questions about. It's with a specific power project in mind. It's the Synex project up in Tahsis on McKelvie Creek.

There has been some concern by the village — in fact, quite a lot of concern by the village — about the impact that power project has on their drinking water, their drinking water supply and the ability for them to continue to access their drinking water. They've had problems of turbidity, they've had a number of boil-water advisories, and they are looking at the long term, the impacts it's going to have on their drinking water.

I'm not sure whether that would be a question for this

section or a question for

section 22, so that's why my hesitancy in standing up.

[1455]

[ Page 3239 ]

dam, a reservoir, would entail descriptions of how high, low, how often they release, all those kinds of things — so the amount of water.

I'm told that it is fairly common, unfortunately, with almost all reservoirs, including those that we're familiar with, or I am, on the Lower Mainland, etc.

C. Trevena: I thank the minister for that. As I say, I'm a little hesitant to press on this, because, again, whether it is even ministry…. But since you have somebody from the Ministry of Forests, Lands and Natural Resources, I will press the point.

We have a village that is going to have a run of the river above the village. It's using the village's watershed. The village is very concerned about that. The village has always had access to that water. Now it's going to be used by an independent power project. The independent power project hasn't actually started yet.

Who has the rights there for making sure that there is going to be both adequate and good-quality water and that the quantity of water for the village is not going to be disturbed, as well as the quality? I understand what the minister says about going through the Ministry of Health.

[1500]

Hon. M. Polak: While the Water Sustainability Act doesn't directly deal with drinking water quality, nevertheless, even now, with respect to Forests, Lands and Natural Resource Operations, their statutory decision-makers must consider the potential impact on downstream water users from any project. So they would take into account any potential negative impact on the drinking water for the community.

C. Trevena: I thank the minister. Again, whether it's this section, whether it's even the right minister at the moment to be proceeding with this…. I'll understand if the minister says that she's gone as far as she can in assisting on this.

We have this IPP that is proceeding. The community has gone to the Ministry of Forests, Lands and Natural Resources. They've tried to raise it in various ways because of their serious concerns. Most recently I think it was a letter last month. In that, their view is basically that because it's an independent power project, they have no ability to raise their concerns or be heard.

Their culmination…. It's a very strong letter from the chief administrative officer. They describe it as an interesting case as to how far the province will go and who will be compromised for a six-megawatt independent power project, and it appears the province has predetermined the project will proceed no matter what consequences and to whom — whether that leaves them with unsafe water for the village.

Again, we've got the opportunity here, through the Water Sustainability Act, to try and prevent problems like this coming up in the future as well as to try and untangle problems that we already have, as I read some of the sections of this act. How could we be using what we have in front of us to try and untangle some of the mess that is happening in this one community? If it's happening in this community, it may be happening in others. So just how to unravel the problems that they are obviously facing.

[1505]

It is, though, probably worth noting, although it doesn't come up until

section 43…. This is one of the reasons that the water objectives become important, because it allows a bit of a broader set of — I don't want to say "authorities," but — guidance, I guess, if you will, or enables a broader set of authorities than we have currently available to us. That also could be a piece to this.

Again, it's very difficult to talk about an individual project, but generally speaking, those would be the facets of this that would come into play.

Then a few years into the licence — or maybe more, due to climate change, other factors — all of a sudden the circumstances have changed. The flow regime in that

[ Page 3240 ]

[1510]

Sections 19 to 21 inclusive approved.

section 22.

S. Chandra Herbert: This is about the precedence of rights: determining under the FITFIR regime, the first-in-time, first-in-right regime, I think, who has the first right to water should there be a reduction in the amount of water allowed to be used for a variety of issues. It could be environmental, climate change. It could be because there are more users and there has just been less rain at that time of year, I suppose.

I'm curious how the list of who has the rights to water, the list determining that we have domestic on top as the first use to be protected, waterworks, irrigation, mineralized water, mining, industrial, oil and gas, power, storage, conservation, land improvement, in that order…. Who determines that ordering of precedence in rights?

Hon. M. Polak: It's essentially the same as the old Water Act. Two differences: oil and gas used to be captured within the term "industrial," and instead we've put it below industrial in precedence. Then in terms of irrigation and mineralized water, the Water Act had some rather ancient terminology to describe those, and so those are simply modern language. And we switched the order.

Mineralized water used to be called mineral trading water or something like that. It was a very old term. That used to be ahead of irrigation, and now irrigation is ahead. I apologize. We switched the order there as well.

S. Chandra Herbert: I'm just curious. I know there are certain provisions to bring in environmental flow protections, should that be required over and above, which would overrule the water purpose ranking. It's my understanding in reading this

section that should there be that need, then you could overrule the ranking, of course, with essential household use being still a possibility.

In the list of ranking we have kind of a lowest priority, so to speak, I guess. The lowest rank was land improvement, but the next one up is conservation. What kind of thinking goes into a conservation designation? What kinds of uses would fall under conservation?

Certainly, with a Water Sustainability Act, the first thought would be, "Well, conservation should be a top priority" — not near the bottom. Of course, I'm conflating the two, but one would question why conservation takes such a low ranking in this ranking system.

Hon. M. Polak: First, to be clear, the order of precedence doesn't kick in unless there is a circumstance where it is the same stream and the licences were granted at the same time, right? The order of precedence doesn't kick in unless that circumstance arises.

[1515]

I'll agree here. It is rather confusing when normal people who don't live in the world of legislation, like us, read this initially. The first reaction is: "Oh my goodness, how could conservation be so low on the list?"

The important piece to remember is that this isn't just conservation generally. As you'll see throughout the act, there are lots of places where conservation takes precedence over virtually everything else. This is water that would be used for a conservation purpose — so diverting water to flood a wetland, for example, or create a wetland, diverting water to create a salmon hatchery, right?

There have to be works involved. It isn't a matter of conservation itself being low on the priority, but in terms of works that would be installed, water that would be diverted for a purpose, then conservation arrives at this precedence level.

S. Chandra Herbert: Yes, I understand. They have to have applied at the same time and be in there in equal parts, I guess, for FITFIR, in some sense. How many times has this kind of a

section of legislation been used under the current act?

Hon. M. Polak: I'm sure, as the member will appreciate, the chances of having licences conflict in this way — very, very rare. In fact, we don't have even an example to give to you of when this

section has been employed. But of course it is conceivable, and so we must cover it off in the legislation.

Section 22 approved.

section 23.

Why 30 years? Some have said 20 years would be adequate. Some have said at 30 years you should have the right to tell the person, "Well no, we don't want to continue," for a variety of reasons. Rather than just reviewing

[ Page 3241 ]

Hon. M. Polak: The member will know that in the old Water Act there was no review period whatsoever. I suppose, at whichever point you place this, some people will be dissatisfied with it.

On balance, based on the years of consultation and work with different organizations — be they agricultural, industrial — 30 years, we felt, provided for the right balance between our ability to manage the resource and at the same time provide certainty to those who have the water licences. Again, I'm certain that whatever number we chose, there would be people who would be dissatisfied.

It's important to note that in the case of this 30-year review, it's the review of a permanent licence. In the case of the hydroelectric projects, of course, the term of the licence ends at 40 years, and then there must be a new licence granted.

S. Chandra Herbert: In 30 years much can change in a landscape. It says that there will be a review required. Is that a full review with environmental flow needs being researched and maybe the hydrology of the area looked at? I ask because I know that sometimes, with the best of intentions, we set up these processes, but the work is not always updated.

[1520]

It's slightly different, but I was looking into floodplain mapping the other day. Of course, our friends in the real estate industry have raised that issue and mentioned that it had been really probably 20 or 30 years since many of the floodplain maps have been updated, which clearly is not adequate in a changing climate.

Even if we didn't have the spectre of climate change on top of us now, the land changes. Erosion happens. And I just want to make sure that there is a fulsome review under this and that a future government…. While the minister may be very fit and lively, I don't imagine she'll be the minister in 30 years. That may be her dream. I'm not sure. However, she may not be. It may not be her choice at some point. So I just want to make sure that there are adequate protections in here so that a future government, hopefully, in 30 years' time will actually have to make sure that the science is done again.

Hon. M. Polak: There will be regulatory guidance for the statutory decision-maker, but it is at the discretion of the statutory decision-maker with respect to the scope of the review. The reason for that being…. Just as there's a wide variety of different licences requiring different levels of scrutiny, so too the review of those licences would require varying levels of scrutiny. But we will be providing regulatory guidance as we develop the implementation of the act.

[1525]

Hon. M. Polak: A good example would be a very small irrigation licence from a very large source. The risk involved in that is very small.

It, in a sense, mirrors what we decided in terms of groundwater use for the purpose of regular domestic household use. People ask: "Well, why didn't you include that in terms of the licensing?" The answer is because the effort to be put into taking into account every single domestic well would have very, very minimal environmental benefit and yet would take a tremendous amount of effort.

So, too, when we look at how a statutory decision-maker will approach a review. In the case of a very small

[ Page 3242 ]

There are cases where the risk is so low it just really isn't worth the review time that is taken from others that would be of higher risk.

S. Chandra Herbert: I can accept that. I understand that. I think the risk, of course, is that a government — and some would argue this government — has reduced environmental protections and scientists and others to such a degree — maybe we have an economic recession, maybe we have some challenges — where a government of the day could decide to drastically reduce the staff in the Ministry of Environment and in Forests, Lands and Natural Resource Operations, etc., in such a way that the statutory decision-maker doesn't really have the people to do the work.

And so it reduces the class of projects which have to be reviewed to such a small number that, potentially, projects which do have bad impacts or do have potentially challenging impacts to the environment are let go through just because of lack of resources or lack of staffing.

I think that's the concern with this section. I understand the need to leave a certain amount of flexibility. I guess I wonder: did the ministry ever consider…? Or is the policy written in such a way to class projects in different degrees of risk so that when these projects come up for review, it's simple to know which ones are going to have to be looked at first? Or is it really on a first-come, first-served basis?

[1530]

Hon. M. Polak: I appreciate what the member said with respect to the important role that scientists and independent decision-makers play in our government structure. In fact, this is providing the ultimate of independence. Statutory decision-making and independent statutory decision-making cuts both ways.

Not only do you want to provide them with as much independence as possible, but in providing them that independence, you are accepting the fact that they will use their discretion — not ours — in terms of the choices they make.

There will be regulatory guidance. Whether or not it uses categories or describes conditions for consideration — that will be left up to those who are the professionals to design something that's workable. I will venture to say, though, that based on the history of what has occurred in the various permitting ministries, if — God forbid — there was a sudden and dramatic slashing of staff in the ministry that was responsible, chances are it wouldn't result in projects or licences not being reviewed if there was a problem with them.

In all likelihood, based on what we've seen in previous experience, it would likely result in significant delays. But I believe, based on their professional qualifications and responsibilities, they certainly wouldn't overlook the review of a licence that was proving to be problematic.

Sections 23 to 29 inclusive approved.

section 30.

S. Chandra Herbert: Beneficial use of water. We had a bit of discussion around "beneficial use" and public trust — those kinds of issues — when this bill debate began. So the idea is that beneficial use requires you to use it in a way, I guess, that is beneficial to the public — the idea of keeping it an efficient use of the public, for the public.

I'll give the minister some time. I see my colleague from Surrey-Panorama is creating some more havoc in this House, so I will let him be seated. The member for Vancouver-Quilchena, as well, gesticulating quite wildly, having a wonderful time as we discuss water. I'm glad to see it. Beneficial use of water is something that I would encourage for him as well. It will reduce the gesticulations, perhaps.

If the minister could explain the thinking behind "beneficial use". What legal thinking has this drawn from, and what benefits, in terms of water efficiency, does the ministry hope to achieve with it?

[1535]

Hon. M. Polak: There was a

section in the previous Water Act. What we sought to do here is to clarify by defining "beneficial use" so that it is clear what we are getting at is that we don't want to see waste of water. We have also, then, expanded the responsibility so it's not just the licensee but any water user.

S. Chandra Herbert: Obviously, if we're going to determine "beneficial use," we need to have some understanding of what is not a beneficial use, what is wasteful use of water. Is the ministry developing some sorts of guidelines in the sense of, let's say, domestic or agricultural use? What would be expected in terms of — I don't know; maybe this is getting far too technical for me — a certain number of millilitres or gallons or litres used per bushel of hay or something?

I'll just throw that out. I come from a hay-farming family, although far from that farming family, as is probably evidenced by my lack of knowledge of those terms.

How are we going to determine a real beneficial use and get it from just being an understanding on paper to one that actually has real meaning and one that people

[ Page 3243 ]

can live up to? Being told that you need to sign a declaration that you will use it efficiently may mean something very different to different people. A neighbour of mine once argued to me that it was much more efficient to use the hose to wash off their driveway than to use a broom. It may have been more efficient for them in terms of their muscle use, but it certainly wasn't in terms of use of water.

Hon. M. Polak: There will be regulatory guidance that will be developed in order for there to be a clear understanding of what "beneficial use" might look like. It's important to note that while there is a conservation aspect to this, that doesn't tell the whole story. Part of beneficial use that we think is extremely important is that the allocation and the use match what would be happening every day with this particular licence.

[1540]

We want to not only ensure that people aren't wasting water generally, but in terms of a licensee…. For the sake of argument, if a licensee applied for…. We want to deter someone from applying for a licence for an allocation that is far beyond what they're going to need just so that they have it there just in case.

We want to know that they're using their allocated amount in the way in which the licence was granted to them to use. It goes beyond even just straight conservation and into efficient use of the water. We want to ensure that for irrigation purposes they don't have leaky pipes, things like that.

S. Chandra Herbert: Maybe this will be determined in regulation, but I guess the concern is, of course, that if we're talking about "beneficial use" and saying, "You should use what we give you," people will then decide to use it all up so it doesn't get taken back, as sometimes happens in the month of March in certain ministry departments as well.

I'm just curious. How are we going to make sure that we actually are seeing beneficial use — that it's not 30 years down the road that we're reflecting on these licences and saying: "Well, you didn't really beneficially use it in years 17 and 21"? What's the process going to be like?

It's a great theory. It's a great thought. Given that B.C. and Canada and North America were some of the highest per-capita water users in all of the world, we do need to drive that down and make sure that we efficiently use it rather than waste it. But how are we actually going to see that, and when do we know that it's actually working?

Hon. M. Polak: There are two pieces to that. It comes into play during the adjudication of the initial application. It's not just: "Is there room to grant you this much water?" You're also looking at the use to which you're going to put the water. Does it match with the amount you're asking for?

In adjudicating that licence, if it was irrigation, for example, the statutory decision-maker would look at: "Just what is the acreage you're planning to irrigate, and what method are you using?" Then it would be very obvious if the person was asking for an amount that's far beyond what their needs might be.

The second piece that comes into play, of course, is with respect to the review of a licence after the 30-year period. Certainly, if there are complaints that a licensee is using water inappropriately, then that could also be looked into at the time.

S. Chandra Herbert: Will there be spot compliance — you know, limited enforcement mechanisms where ministry staff could go and check on people? Will they respond to complaints prior to the 30-year cutoff and bring in corrective action at that point?

Hon. M. Polak: There is a variety of ways that this happens. Now, first of all, to be clear, the declaration that's mentioned in the

section — we don't have to wait for the 30 years to do that. That can happen at any time when there's a concern. You can appreciate, with the size of the province and the vast number of individual and industry users now — especially now that we are including groundwater as well — it becomes a bit like policing.

On a broad level, in terms of policing, we don't have individual police officers following us around, right? They respond to complaints. Sometimes they investigate something suspicious. Similarly, we operate on that basis — obviously, paying more and closer attention to those licences that are higher risk and where there's a greater sensitivity in terms of impact. But now through this we have the powers, though, to act at any point when we have a concern.

[1545]

S. Chandra Herbert: If somebody were watching this and decided they had a complaint, that a neighbour or somebody else was not acting appropriately with water, with the changes in this act — of course, we're talking about the current act, but should this act pass — what would they do? Would they e-mail the minister? Is there a water hotline — 1-800-water?

How do they actually make a complaint? Most people, I think, probably would not know what to do — maybe would talk to the local government. But they wouldn't call 911, I doubt. How would this work?

Hon. M. Polak: That's correct. We do not want people dialling 911 in the event of a water concern, no matter how passionate they may feel about water. It's not that kind of an emergency.

The system works like this. They would call the RAPP line. It's the Report All Poachers and Polluters. They would call that line, and a natural resource officer would be dispatched. They have full powers currently under the

[ Page 3244 ]

Water Act, and they will continue to have those powers under the Water Sustainability Act.

S. Chandra Herbert: My next question will be on

section 43, just to give that indication to the Chair.

Sections 30 to 42 inclusive approved.

section 43.

S. Chandra Herbert: Thank you, hon. Chair. Well done. It's hard work to be in that chair there. Got to keep him on his toes.

N. Simons: He's got to stay awake.

S. Chandra Herbert: "He's got to stay awake," my colleague says. I apologize. Have a glass of water. It'll wake you up. You don't have to drink it. Anyways….

Water objectives. It allows cabinet to create water objectives by regulation, which government decision-makers must consider. The intent is to protect water quality and/or quantity for specific water uses or to protect aquatic ecosystems. It's a great idea.

Again, similar to earlier questions, who creates the water objectives? Are these things shared publicly? Is it a cabinet document? Certainly, there would be a lot of people who have different objectives for water — of course, the first being making sure it's there in a healthy form for the future. How are these designed, and what are they looking to actually do?

Hon. M. Polak: This is an enabling piece, and yes, the regulations, once developed, would be public. It is left with the flexibility to develop regulations over time that may reflect circumstances that we wouldn't be able to foresee at this point, and so, again, it's left fairly broad. But it is intended to be enabling, and yes, that would be public.

[1550]

S. Chandra Herbert: This could be a very powerful part of the act. It could make a real difference, or it could sit on a shelf. My question would be: what's the first water objective the ministry is looking to enact this year?

Hon. M. Polak: Some areas that we are currently interested in pursuing and that staff have been giving some thought to: qualitative statements for water quantity, quality, aquatic ecosystem health — for example, water quantity that's sustainable and applicable to surface water and groundwater, water quality that's suitable for its designated use, aquatic ecosystems that are healthy. These are topic areas that staff are already spending some time thinking about. I'm sure there will be others that arise as well.

Sections 43 and 44 approved.

The Chair: Shall

section 45 pass? So ordered. Shall

section 46…?

S. Chandra Herbert: Hon. Chair, on 45.

The Chair: On

section 45.

S. Chandra Herbert: Thank you. The river was starting to really flow there, but I put up a dam.

The Chair: I know. You have to be fast.

section 45.

S. Chandra Herbert: This

section is "No new dams on protected rivers." Maybe that means I should sit down.

I want to ask about this section. It talks about protected rivers. What are the current protected rivers in British Columbia?

Hon. M. Polak: There's a

schedule at the end. I'll read them here: "Adams River, Alsek River, Babine River, Bell-Irving River, Clearwater River, Fraser River, Nass River, Skagit River, Skeena River, Stikine River, Stuart River, Taku River, Tatshenshini River, Thompson River, North Thompson River and South Thompson River, West Road River, commonly known as Blackwater River." This list is from the Fish Protection Act.

Section 45 approved.

section 46.

S. Chandra Herbert: "Prohibition on introducing foreign matter into stream" is this section. What are the penalties should somebody introduce a foreign matter into a stream, and how many tickets or enforcement orders has the ministry issued, let's say in the last year, in relation to this and 47, I suppose?

Hon. M. Polak: Standard with any legislation like this, it could be an administrative penalty. It could be a fine. That will be developed after the legislation, hopefully, passes.

S. Chandra Herbert: I don't imagine this is what the minister meant, but it could be, I suppose. Is there no penalty or fine or administrative penalty currently for introducing foreign matter into a stream?

[1555]

Hon. M. Polak: Okay, I'll see if I can outline this clearly. Two things. It currently is an offence under the Water Act to introduce matter into the stream. However, it's only an

[ Page 3245 ]

offence after you've been ordered by an engineer not to do it. So we're improving that circumstance, okay?

There was a provision under the Fish Protection Act, a penalty provision, but it was never in force.

S. Chandra Herbert: My goodness. My goodness. So introducing "debris, refuse, carcasses, human or animal waste, pesticides, fertilizers, contaminants or another matter or substance into a stream, a stream channel or an area adjacent to a stream" is not currently not allowed. Well, you're currently allowed to do it unless somebody says: "Hey, maybe you shouldn't do that."

I guess we need a lot of "Hey, you shouldn't do that" kinds of guys stationed on rivers and streams all over the province right now, because that's crazy. I don't understand it. I don't understand how it went on this long, but I guess with

an act over 100 years old, things like that were introduced at odd times and with odd results, as we see here.

I'm glad we are bringing in changes and the ministry is considering what sorts of administrative penalties or other ways that we could address this are. I understand there's more work to be done on this. How quickly can we get this changed? This is wrong.

Hon. M. Polak: I don't want to leave the impression that people currently can stand at the sides of rivers and hurl whatever objectionable material they wish into them. While we're very proud of the Water Sustainability Act and its improvements, it is not the only restriction with respect to pollution. We of course have the Environmental Management Act, and that would prohibit the hurling of objectionable material into the rivers and streams.

S. Chandra Herbert: Well, I'm glad there is at least some protection from hurling things into rivers and streams. Can I get some explanation in terms of…? If we have protection under the Environmental Management Act to stop people from doing that, why is this protection required? What's the gap here we're trying to fill? It at one point sounded pretty darn wide; at the other it sounded like maybe it's not a problem at all. If I could get some clarity on what's going on here, that'd be great.

Hon. M. Polak: The difference between how the Environmental Management Act would work versus the Water Sustainability Act provisions is that in the case of WSA one wouldn't have to prove that they have actually caused pollution,

whereas under the Environmental Management Act that's one of the elements involved.

S. Chandra Herbert: I see. So somebody right now could throw a body into a lake or a stream, and if you couldn't prove it actually polluted the water body, well, then no problem. You're having a good time. That is pretty wild, and I'm glad that we are looking to change that. Wow.

I thank the minister and her staff for bringing in this change. But for those watching at home, don't get any wise ideas between now and the time this legislation passes, because we don't want you throwing things into lakes or streams.

Interjection.

S. Chandra Herbert: All three of those people have learned their lesson, and they won't do that anymore.

Yes, I don't have any further questions on this. Hopefully, this will happen quickly. The minister would, I'm sure, be pleased to do that too, and we can get to enforcing this, since you can't enforce something that doesn't currently exist, as I wrongly thought it did.

Section 46 approved.

section 47.

S. Chandra Herbert: Remediation orders in relation to foreign matter in a stream. So if that body got thrown into the creek or the river, I'm understanding that this

section is to allow the government to say: "Well, you've got to fix this, and we will charge you to clean things up." Is that roughly appropriate? How would that enforcement mechanism be brought about? Is there an appeal process, or is that all to be designed at a later date?

[1600]

Hon. M. Polak: Yes, we can require that the offending party deal with what they've deposited, but failing that, we can also hire people to do that and then subsequently recoup our costs from the offending party. It is appealable. One doesn't need a provision to say it's appealable. If we don't say it's not appealable, then it's appealable.

G. Holman: Do these provisions apply to lakes or just streams? The question I have specifically would be something like…. Fertilizers are mentioned. I'm thinking about phosphorus, which is a real issue in terms of drinking water lakes in some communities — phosphorus nutrient loading, which leads to algal blooms and problems with water quality. So, I guess, two questions — whether these provisions apply to lakes as well as streams and whether phosphorus would be included as a contaminant that's prohibited.

Hon. M. Polak: Yes, a lake is considered a stream, so lakes would be included as well. Now, the issue with respect to phosphorus, as the example…. Whether it would be covered under the Water Sustainability Act or covered under the Environmental Management Act would depend in part on how it is occurring. Is someone pur-

[ Page 3246 ]

posely dropping in phosphorus — they're intending to introduce this into the water — or is it something that is leaching out into the water as a result of some activity on the land base that would be more likely covered under the Environmental Management Act?

Our intent here is that, recognizing that there are other legislative tools, we're trying to fill any grey-area gaps that are left. This is one that can get fairly complicated, and as we, hopefully, are doing here, we're providing ourselves with sufficient tools so that we can respond to whatever type of circumstance may arise.

G. Holman: Thanks to the minister for that. We can have an off-line conversation too. I don't want to complicate this discussion unnecessarily. But, for example, leaching from septic fields, which is a prime source of phosphorus in some drinking watersheds — under this legislation or the other legislation that you mentioned?

Hon. M. Polak: It would really depend on the specific circumstances. We'd have to evaluate it and then determine under which act one would be able to proceed.

Section 47 approved.

section 48.

S. Chandra Herbert: This, I believe, we asked earlier. I asked an earlier question about professional biologists, technologists, people who work in science technology, technicians and so on — whether or not they would fall under the category of "professional" in the

definitions. There's some concern that it's possible that qualified professionals could be excluded from this work in this wording.

[1605]

[D. Horne in the chair.]

Hon. M. Polak: I'm familiar with the concerns that have been raised. Again, this brings us back to some commentary of mine earlier where often legislative language doesn't speak with the clarity to members of the public that it may to those who live and breathe on leg. counsel. Not withstanding that, it's important to note that, first of all, this section, or the definition of "professional," only applies for the purposes of this division.

Secondly, and I think most importantly, for those who have concerns in this area, in no way will the range of work that is currently done by members of organizations like ASTTBC…. In no way will the number of areas be reduced in which they're able to employ their skills.

Section 48 approved.

section 49.

S. Chandra Herbert: I attended an interesting event out in Abbotsford a while ago. It was called the Water Show. There were many well drillers and sump system purveyors. A range of people — biologists, conservationists — an interesting crowd.

One of the questions that I was asked was around wells. I see in this

section that we're looking at certain "Restrictions on constructing or decommissioning wells and related activities."

I see that there are exemptions for wells under 15 metres in depth, a person deactivating or disinfecting their own well or doing work on their own well at the surface level.

What were the reasons for creating those exemptions?

Hon. M. Polak: What this represents is a means by which we can use the legislation to recognize that there are different levels of risk associated with different types of wells and, of course, different requirements based on those different features.

The Chair: The committee will take a five-minute recess.

The committee recessed from 4:10 p.m. to 4:16 p.m.

[D. Horne in the chair.]

S. Chandra Herbert: Yes, the exemptions I can understand. You want to be able to allow people to do some of their own work on their own property in terms of putting in wells. While some people are pretty crafty digging below 15 metres, it takes a lot of work and a lot of technical know-how, I would imagine. I'm currently working on an outhouse, and digging deep enough for that is enough of a challenge — not 15 metres.

There have been some issues raised with me around people doing faulty work on their wells, potentially not sealing them properly or, in the construction, maybe introducing material that could pollute or possibly lead to problems in area wells that also rely on the same water resource.

Do you feel that introducing these kinds of restrictions which are laid out in

part 3, division 3, are going to do enough of a job to make sure that we're only getting high-quality wells and that people will have adequate protections of their groundwater? I know that under the current regime, there's some real concern of people not doing it properly.

Hon. M. Polak: There are offence provisions further on. I think we get to that in

section 106. In the case, though, of a person who is dealing with their own well and the issue of contamination…. In a case where you were dealing with an area with a very shallow aquifer, we do, as well, have the ability to put in place area-based

[ Page 3247 ]

regulations.

[1620]

This will allow us that flexibility to respond differently in different parts of the province, depending on the needs of the particular location. But there are, in fact, offence provisions for those who…. Well, we'll end up at that

section at some point, but there's a long list of things that can be offences under the act.

S. Chandra Herbert: I see this section…. A huge degree of it will be, of course, decided by regulation in terms of how it rolls out. Area-based regulations could certainly make a difference. If you add a shallow aquifer…. I guess the challenge is that domestic water users may not know that there's an area-based regulation if they're deciding to put in a new well in their home and they're doing it themselves.

There's a bit of an issue there where I think, hopefully, as these regulations are developed, there's an understanding that people need to be informed of them, not just that they're there on the paper in case there's a problem — because of course, we should be working to be proactive rather than reactive.

I will be supporting these regulations through to 58, and I'll have some questions on 59.

I guess the question is…. When we develop regulations for well construction, that can create lots of benefits for the public, but it can also create lots of costs, potentially, depending on how you structure them. In developing well water regulations, will there be some sort of a public process with people in the industry, with people who rely on well water?

I ask because something that may sound like it makes a lot of sense at the ministry level could create a huge burden on the public if they don't have a chance to have their voice heard in developing regulations that actually work on the ground, not just in the planning stages.

Hon. M. Polak: Fortunately, we're not starting from scratch. There is already a groundwater protection regulation that is in place under the Water Act. It has provisions dealing with well drilling, and they're quite extensive. We will, though, be in communication with the industry, as well as drawing on much of the consultation that we heard as we were travelling the province in developing the act. Of course, there are also associations that I'm sure would have an interest, like the cattlemen and others such like that.

Sections 49 to 58 inclusive approved.

section 59.

S. Chandra Herbert: Provision on the prohibition on introducing foreign matter into wells. We had the discussion about introducing refuse, carcasses, waste, construction, other materials into waterways. Now this is into wells. Is this the same kind of issue that existed around introducing bodies into streams — that unless you saw somebody do it and told them to stop and they kept doing it, you couldn't fine them? Or is this something altogether different?

[1625]

Hon. M. Polak: The member will be pleased to be advised that with respect to this section, because the well-drilling provision was already there in the Water Act, in fact in this instance one wouldn't have to wait for an engineer to tell them to stop putting the bad stuff in the well. They already can be handled.

Really, the only change in content here is an expansion to consider the adverse impacts that there may be on another aquifer or stream that is connected to the well. Other than that, it remains pretty much the same.

Sections 59 to 63 inclusive approved.

section 64.

S. Chandra Herbert: This is a

section relating to water sustainability plans and again another opportunity that could be quite powerful if developed and enacted. A lot of it's regulation, so I imagine as I go through it, if there are things which…. I will be told a lot of it is being developed.

Rather than going through each

section and trying to pull out what's going to go on here, I wonder if the minister might be able to give us a sense of what the plan is to develop these water sustainability plans over the next year. What areas got the first priority in terms of developing a plan, and what is the hope of what comes out of water sustainability plans?

Hon. M. Polak: It's perhaps helpful here to talk about what the end objective is. It's not our intent that every square inch of British Columbia should eventually be under a water sustainability plan. It's enabling so that we can put in place water sustainability plans in areas where we have an existing concern or where we think one may develop in the future.

As such, what will occur is that staff will be monitoring for areas where that work would be advantageous for that local area. At this stage we don't have plans outlined as to how we will proceed with next steps. It wouldn't be to ultimately have water sustainability plans everywhere but that they would be a tool that could be used in an area where there are concerns.

S. Chandra Herbert: Certainly, the ministry has outlined their concerns with the northeast part of B.C. in terms of water sustainability. Certainly, the Okanagan, parts of Metro Vancouver and then eastern Vancouver Island, I believe, is what was on the map the ministry

[ Page 3248 ]

put out.

Now, again, this is one of those things where you could argue that the act is very strong because it has this provision. The question is if it's never enacted, then it's not very useful. It's just words on paper, and it could then be describing the act as very weak.

What kicks off the development of a water sustainability plan? I know the minister could decide on her own volition that this is something that should occur. A staff member could suggest this is something that should happen. But what are the key factors that have to be considered in order to do this?

[1630]

I know in some rivers or some streams there may be people out there who think a sustainability plan is required, given fluctuations or given challenges to the aquatic systems there. How do you make sure that this can happen if necessary?

Hon. M. Polak: Really, the process could be triggered in a number of different ways, and the member has outlined a couple of those. It could be generated by organizations in the public domain. Communities could seek it, regional districts.

It's also worth noting that this will be one tool. It won't be the only tool. I mean, there are regions in the province already that do a very good job of watershed management, of looking at their region and developing community-based plans, some of which are already in place, some of which are in development. Again, it's not meant to be the only way of dealing with this but yet another tool. It could be triggered in a number of different ways.

S. Chandra Herbert: Are there current examples of plans and networks in British Columbia — plans that might look something like a water sustainability plan — that the minister is aware of?

Hon. M. Polak: A few examples, but I'm told there are many more. The Okanagan Basin Water Board, I think the member is familiar with. They have a number of plans that relate to water use in their area. The Nicola water use management plan is another good example. Also, one that is not yet approved — but certainly I know a lot of work has gone into it — comes from my place of residence. The township of Langley, of course, has a water management plan that they've been working towards as well.

S. Chandra Herbert: Given that there are current existing plans, including the one that is quite extensively developed in Langley township — and I'd heard about it as well — is there a thought that using this framework, the minister and her staff could work with a township or with the Okanagan to create a sustainability plan for that area based on what they've already developed? Might that be a place to try this out as a first step?

Hon. M. Polak: We could. Ultimately, what we want to do is ensure that we have responded as best we can to the natural needs that are represented by the water environment but, also, to the desire of the community. There will be some communities where they wish to be very active in managing water and in the role that they can play. Other communities may not be so interested.

We will certainly look to weave our work together with work that already has been underway in their area. Nevertheless, a water sustainability plan is a somewhat different animal than many of these other plans.

[1635]

S. Chandra Herbert: Certainly, I've heard a lot of concern around water in the Cowichan Valley — a lot of concern. I'm not going to volunteer them, because they would do that themselves. But if a group had real concerns about their watershed or the water access they had, would their action be now to go to the minister and request the minister's support to create a water sustainability plan? Would they have to get town council support and advocate and ask for this? How would they go about doing this? Or is it more of a top-down kind of process?

Hon. M. Polak: We'd have to look at the individual circumstance. Obviously, we would want to see broad-based support for that. We'd also have to consider the fact that a water sustainability plan may not be the right tool in all circumstances. So it would really depend on the individual request.

S. Chandra Herbert: What kind of budget is being put aside for development of water sustainability plans?

Hon. M. Polak: That'll be a decision for Treasury Board. We'll make a submission there based on our implementation plan for the act.

Sections 64 to 68 inclusive approved.

section 69.

[R. Chouhan in the chair.]

S. Chandra Herbert: This

section talks about other planning processes, with consideration being given to First Nations governments, the Nisga'a government. How does this section, or following sections, differ, I suppose, from the water sustainability planning process? Or is it the same, just with a different filter on it?

Hon. M. Polak: It's really just another component of it.

[ Page 3249 ]

S. Chandra Herbert: Something that hasn't come up yet is the Drinking Water Protection Act and how it relates to the Water Sustainability Act. It is mentioned in this section. Could the minister explain the interaction between the two?

Hon. M. Polak: There are lots of complexities to it. But very roughly, the Water Sustainability Act deals with quantity, and the Drinking Water Protection Act deals with quality. There are exceptions, but that's the rough split between the two.

Sections 69 and 70 approved.

section 71.

S. Chandra Herbert: This

section relates to "Notice to affected persons" if a water sustainability plan, if implemented, could "detrimentally affect the rights of…(

i) an authorization holder; (ii) a change approval holder; (iii) a drilling authorization holder…(

v) a riparian owner…." The list goes on.

I'm just curious. In terms of notification, giving notice, what is the government's definition of notification? Is it registered mail? Is it a phone call? Is it an e-mail?

Hon. M. Polak: I'm advised there's an entire

section about that coming up in 117.

Sections 71 to 75 inclusive approved.

section 76.

[1640]

S. Chandra Herbert: There is discussion around the

definitions of "issue" and "land or resource instrument." Basically, from what I can see, this could give any government decision-maker under almost any government statute the power to implement water sustainability plans, which could be quite extraordinary powers to override provisions in other statutes for the purpose of implementing a water sustainability plan.

Again, it could be quite powerful, should a plan be created. I understand the idea would be to ensure that it has power so that it actually could be enacted. I'd just be interested…. Why was such an extraordinary amount of power, in a sense, wrapped up in this, particularly regulation and effect on statutory decisions?

Hon. M. Polak: The member is right. This can be a very powerful tool. It's one of the reasons why there is so much in the legislation and so much around the development of a water sustainability plan in the first place. This should be an avenue that is used rarely. Nevertheless, one of the things we could not avoid was the fact that land use impacts are really inextricably linked to quality of water and effects on water. We really felt there was a need for us to have the legislative teeth to actually deal with that.

Sections 76 to 78 inclusive approved.

section 79.

G. Holman: Mr. Chair, my apologies. I'm interjecting here in the wrong section, but I just wanted to clarify that these powers conferred in this legislation would apply to Crown lands in general, to private lands, to lands under the Private Managed Forest Land Act in legislation.

Would the ability to establish a plan, to establish regulations that would implement a plan…? Would that apply to all: Crown, private land and, particularly, land in private managed forest status?

[1645]

Hon. M. Polak: Perhaps the simplest way to answer this question is that wherever we have the authority to grant a permit, whatever lands we have authority on which to grant a permit, then this would apply.

G. Holman: Just to nail it down, you have authority to grant permits in all of those land use designations. Is that correct?

The minister is nodding.

Hon. M. Polak: Yes. I'm not trying to be obtuse. I'm just trying to maybe line up the two. There is permitting, and there's…. That's how it's designated.

Sections 79 to 86 inclusive approved.

section 87.

S. Chandra Herbert: This is around critical environmental flow protection orders. I understand similar policy currently exists. How often has this kind of idea been used already, if it has? What is the best guess? Is this a stopgap that in the distant future could be a problem, or is this something that may have to be used, let's say, once a year? What is the thinking behind critical environmental flow protection orders?

Hon. M. Polak: In fact, this particular provision is new. It doesn't exist in the current Water Act. The idea behind it is this. All water licences going forward would have a fish clause. That leaves those that are pre-existing.

[1650]

This acts in place of a fish clause in their individual licences. It would apply to those that are pre-existing.

S. Chandra Herbert: My understanding of this — and correct me if I'm wrong — is that this

section would require a comptroller in an area that has been issued an or-

[ Page 3250 ]

der declaring a significant water shortage to determine the critical environmental flow threshold for each stream. Is that: "Go out and measure how much water there is now compared to what's supposed to be in the report that they provided when given the licence"? Or is this a new measurement to go out and assess?

My understanding was that when given a licence, you are supposed to have submitted a report of what a critical environmental flow level would be. Or maybe it's just the environmental flow. I'm not sure if there's a difference in the terminology that would already be known. I'm just curious why they have to go out and discover it if it's potentially already known.

Hon. M. Polak: There is a difference between environmental flow needs and critical environmental flow protection. The critical environmental flows would be where you're actually in danger of seeing fish species die off as a result of the activity, which would be different than just the general environmental flow needs, which would be less conservative.

S. Chandra Herbert: So I guess environmental flow is the idea that the fish are going to survive and we've got good aquatic protections when we deal with water issues. But should an order be issued because the flow is so low, now a comptroller has to go out and look and see how much water is left. I guess that then helps determine the allocation for other users. Or if we've said, "Stop water use," there are no users aside from, I guess, the fish. Is that right? I'm just a little confused around how this would look in practice.

Hon. M. Polak: A few different pieces of information, I think, are helpful here. Firstly, we have a provincial drought technical working group. These folks are well familiar with where there are trouble spots in the province, and they have already done much of the work in terms of understanding the environmental flow needs in a particular region.

It's worth outlining, I guess, the difference between environmental flow needs and critical environmental flows. Environmental flow needs aren't just about minimum stream flows, but they are about the volume, the timing of the flow. When does the stream need what type of flow to stay healthy? Critical environmental flows are a short-term threshold beneath which you would see irreversible harm to an aquatic ecosystem.

[1655]

While environmental flow needs have to be considered in the granting of a licence, that hasn't always been the case. Because we have licences that have been in place for, gosh, going back, lo, these many generations, this puts in place the same kind of protection that would be there if we had the current practice in place back in that day. This affects those pre-existing licences where those environmental flows weren't considered at the granting.

Section 87 approved.

section 88.

S. Chandra Herbert: Fish population protection orders. We have the Fish Protection Act, I think the minister mentioned. How many times have these orders had to be issued, or is this a big change?

Hon. M. Polak: It's actually only been done once: in 2009 in the upper Nicola. Thankfully, it was successful, and the fish began returning almost immediately, but it was touch-and-go, as I understand it. So yes, only once.

Section 88 approved.

section 89.

S. Chandra Herbert: How many drinking water officers or water bailiffs do we have working for the province right now?

Hon. M. Polak: The drinking water officers are under the Ministry of Health. At the time when the Drinking Water Protection Act was brought into force, there were about 40. I wouldn't be able to tell you how many there are currently. As far as water bailiffs, there are about a dozen or so.

Sections 89 to 97 inclusive approved.

section 98.

S. Chandra Herbert: This

section relates to recovery of amounts owing for work performed. It allows the government to recover costs approved from one or more people, due to not complying with an order related to a hearing or inquiry under the Water Sustainability Act.

[1700]

I'm interested in this, because, I think, sometimes when it relates to the natural environment, we undervalue both the work of government and the work of the natural systems. This, I think, similarly could be argued in the next section, and I'll probably do that there as well.

Are we talking about getting interest for the amount of money owing? Are we talking about progressively stepping up the amount of money owing to the government? I think if people see that, as they have done under fines that they've been issued under the Water Act and in other respects over the years…. They often just don't pay them. I'm glad the ministry is finally publishing their names, but we still see situations where people just do not feel that…. For some reason, with fines or penalties or amounts owing, when it comes to the natural environ-

[ Page 3251 ]

ment and government, some people like to shirk their responsibilities, including some relatively large B.C. corporations, which we all know.

How do we up the pressure? Is the minister considering doing that in this

section so people don't get away with committing crimes or damaging the natural world and getting off scot-free?

Hon. M. Polak: Firstly, this provision is quite similar to an existing provision in the Water Act, the change here being that we have extended the recovery for water bailiff costs as well.

With respect to how you get people to take this seriously, the member will be aware that we've started to take some increasingly public action with respect to people who owe money. We, of course, can pursue it through the courts and achieve a court order. Unfortunately, in some cases even under a court order a person still does not pay up, so we have now been publicizing the identities of companies and individuals who owe money under a court order yet have not yet paid.

We'll continue to try and increase the pressure in whatever ways we can, but some people just hold out.

Section 98 approved.

section 99.

S. Chandra Herbert: This is around administrative monetary penalties. It allows the ability to give administrative penalties if a person has contravened the Water Sustainability Act or not complied with an order.

I guess in response to the previous answer, I appreciate that the ministry is no longer hiding the names and has decided to make them public. I think that's one step, to do that. I think the question, of course…. It goes to licences to hunt. Whether it's licences to take water, I don't know. I think I would encourage the minister to think far and wide, because if a person thinks they can flout the law and damage the natural world and not have to pay up, they probably shouldn't get a driver's licence renewed until they do so. They probably should not be given the full benefits of living in society if they've decided to neglect their responsibility to that society.

[1705]

I wonder, and maybe it's extreme, but I think we've got to get tough here. We've got to get serious if we're going to send the message that we actually care about our natural environment. Sometimes they have to pay a fine, but we don't get that nature back. It takes a while for nature to regenerate, and oftentimes the fine doesn't really pay for the crime. I know there are further sections in here around creative sentencing and so on, and we'll touch on those at that point.

Is the minister considering going to her colleagues and making arguments for the potential of other government services maybe not being quite so readily available to people who've decided to flout the law in this way?

Hon. M. Polak: We're always considering ways in which we might achieve enforcement. It's always a challenge to consider attaching other services. I suppose I wouldn't entirely rule it out, but here's one of the challenges you face. I'm sure the member has heard this argument with respect to other areas.

[D. Horne in the chair.]

How much do you put on — for example, in the case of car insurance or a driver's licence — the poor person manning the counter who's there giving out driver's licences or insurance and now is asked to tell this person that as a result of their unpaid environment fines, they can't license their truck?

I don't disagree with the member's point around the serious nature of these kinds of offences. Nevertheless, we have to consider that kind of a balance. I think we're always open to new ideas as to how we might better enforce the payment of these moneys owing.

This provision in

section 99 is a good example in the sense that it's new, and any time you can streamline the administration of a penalty, then I think you're more likely to get that compliance. Especially when there can be rapid action, it takes away from that feeling that "well, many, many months ago I did X, Y and Z, and it takes somebody that long to get around dealing with it." In this case, much more swift action can be taken.

B. Routley: I guess my question to the minister relates to Shawnigan. Of course, the issue of contaminated soil in that region is very troublesome for the people in the Cowichan Valley, and foremost amongst their concerns is the potential impact on water.

My question comes down to: is this

section 99 one of the tools that the ministry could use, or the residents of the Shawnigan region, to have penalties put in place if the plans that have been put in place to prevent water pollution don't work out? We've been told that the plastic retaining wall between contaminated soil and the potential of leaching into local creeks is the depth of two loonies. With all of that material packed on top of it, of course, residents say the obvious thing. They're concerned that there could be cracks or fractures or if there was an earthquake or other catastrophic event that resulted in pollution.

The question is: would this be the

section that the residents of the Shawnigan Lake region who have aquifers or wells or water supply from the lake would be able to count on to have the ministry take action to defend their interests and to protect their water and to call for penalties? And would those penalties include remediation? Or is that under some other

section of the act, such as general

[ Page 3252 ]

offences, which is a

section that's coming up under 106?

Hon. M. Polak: In the case of an activity that is permitted under the Environmental Management Act, which would be the case with respect to South Island Aggregates, then it would be the Environmental Management Act that would apply, not the Water Sustainability Act. It would be governed by the provisions in that act.

[1710]

B. Routley: Just to follow up. There would be people that have nothing to do with the management plan of the contaminated site, for example — not the owner. They could be totally removed, such as a lakefront owner that has a water supply from a well or from the lake that's adjacent to that area. Are you saying that even if they had some kind of a water agreement or if the community was to establish a water board–type situation, they would still go under a different act and not under this?

Hon. M. Polak: These are some of the limitations of discussing a hypothetical: "What if this permitted use goes wrong?" Hard to analyze the hypothetical, but in the case where a permitted use…. And there are conditions to a permit. In the case where either the conditions were breached or the conditions that were put in place fail…. All of those are governed under the Environmental Management Act, and it contemplates what happens in any of those events. But in the abstract I wouldn't be able to give you an exact answer. Because it's an authorized use under the Environmental Management Act, it would be the Environmental Management Act that would apply.

S. Chandra Herbert: Under administrative monetary penalties there's a listing of what the comptroller must consider in deciding what a monetary penalty could be. There's a long list: "(

c) the extent of adverse impacts to the environment or the rights of other persons resulting from the contravention or failure; (

d) whether the contravention or failure was repeated or continuous." There's a good long list which catches, I think, most things.

I think the question would be: in deciding on a monetary penalty, would the amount of ministry time, staff time, court time, potentially — I guess maybe not court time — be considered when coming up with an administrative penalty? I think we still lose if you have an administrative penalty which may be big for the person but it costs the Ministry of Environment staff hundreds of thousands of dollars to try to track down and investigate and do the work. In the end, the citizen still loses because of the person's flouting the law.

So how does that kind of consideration get taken into consideration?

Hon. M. Polak: Not precisely. When you look at the list, you'll see there are a couple of references with respect to the frequency of contravention and if there have been previous incidents, etc. So that kind of gets there. We mustn't forget that, of course, the comptroller's powers wouldn't be limitless in terms of dollar figures. There would be a maximum amount, and then the comptroller would apportion part of that or all, depending on that criteria.

S. Chandra Herbert: It's always a challenge, I think, to put a value on the natural environment and to put a value in terms of, if somebody is breaking the regulations, what impact that has. So it is a challenge.

My concern is that if somebody really was quite egregious in what they did, the costs can be quite high. It doesn't take much to create quite a costly cleanup and remediation, should somebody damage a watercourse or a well or something like that. Of course, if you polluted a well, you could potentially eliminate drinking water for people in a region. Or if you were to pollute a stream in such a way, you could end fishing in that region as well, which could have quite massive impacts.

[1715]

When the minister talks about putting a cap on how much, the comptroller not being limitless in their ability to assess a fine, I'm looking for some, I guess I should say, security that we're going to make sure that people actually pay when they do the crime, not just get a slap on the wrist when the crime could be quite egregious.

Hon. M. Polak: This particular

section was introduced so that we have something between just a fine or all the way to an offence. If there was a particularly egregious action, we can always prosecute in terms of an offence, and of course, while we wouldn't be considering, in the administrative penalties, staff time, say administrative time, when we do have to have staff hired or we hire people to clean up, what have you, we do seek to recoup those costs.

S. Chandra Herbert: I guess I didn't jump up quite quick enough, but I can ask it here. The notice of intent to impose administrative monetary penalties. I guess I want to know…. When we talk about an administrative penalty, is this something the Ministry of Environment has used in other acts or in other parts of its mandate? Or is this new for the Ministry of Environment?

I know in the Ministry of Housing, in relation to the Residential Tenancy Act, an administrative penalty has only been used once, and then the government got rid of it. So the bad apples in residential tenancy law have not been receiving penalties, even though they were there to clean up bad apples, supposedly. It just has never happened. They just continue to be bad apples. But I don't want that to happen here.

I'm just curious what the ministry's experience is of using this law or these penalties. Do they have people trained up to know how to bring forward these penal-

[ Page 3253 ]

ties so that we can ensure that they actually are done correctly and quickly?

Hon. M. Polak: I'm not aware of other areas in the responsibility of the Ministry of Environment where we utilize administrative penalties. However, in terms of the staff, this would be the natural resource officers, and they do have the appropriate training to be able to execute.

Sections 99 to 104 inclusive approved.

section 105.

S. Chandra Herbert: This

section relates to the appeals process, giving people, I guess, the discretion or the ability to appeal an order to the Environmental Appeal Board. For my knowledge and for those watching at home, the Environmental Appeal Board…. Can the minister explain the process so that people get a sense of what their right to appeal is?

Also, I'd be curious how many appeals are, I guess, approved, accepted, versus rejected currently under the Environmental Appeal Board.

[1720]

Hon. M. Polak: Firstly, with respect to numbers, it's late enough in the day that we don't have access to the staff who could tell us, but I'm told it is on the website for the Environmental Appeal Board. With respect to this section, it is essentially, for all intents and purposes, the same as what's currently in the Water Act. However, it really wasn't well aligned with the Environmental Management Act, under which the Environmental Appeal Board operates, so the changes really are there to align it better with the act.

Section 105 approved.

section 106.

S. Chandra Herbert: "General offences" is what this

section relates to, and it has quite a good list of what would be general offences. I didn't know that opening or closing a hydrant used for fire protection would be a general offence, but it is here.

Interjections.

S. Chandra Herbert: I'll stop. I'll stop. It was all those movies of kids playing by fire hydrants in a hot summer. It's just so attractive, but I'll have to stop.

There's quite a long list here of offences, and I think it would be good if everybody read them in this House. They could tell their friends and make sure that when they go out on the land, they're not doing this stuff.

Again, maybe I'll just put this…. It would be good for me to just have this knowledge long term. As the folks have gone home at the ministry, so they can't provide me this information today, is it possible to get that information on both the appeal board and the general offences? How many per year are we looking at? Are we trending up? Are we trending down? Are we roughly staying the same? That would be useful for me.

In addition, I would ask a similar question around the high-penalty offences.

Hon. M. Polak: We'd be happy to provide that.

Sections 106 and 107 approved.

section 108.

S. Chandra Herbert: I like this section, I've got to say. I think that allowing a court to increase the fine imposed on an individual to equal any amount that the individual has gained or earned due to their offence, including fines higher than are allowable under sections 106 or 107….

I like this because it reminds me of one of the first things I had to deal with when I was on the park board, where a woman chopped down some trees illegally. They weren't her trees; they were out in parkland. She got fined for cutting down the trees, but the value of her property had increased so much that she was ahead of the game. Her neighbours hated her. She had to move out of the neighbourhood, but she planned to do that anyway, so she made out like a bandit. The trees were chopped, and they had to plant some small trees to replace these great old trees that had been in front of her house.

Is this a new section, or has this been used before, to the minister's knowledge?

Hon. M. Polak: It is a new section, and it's to get at precisely what the member illustrated. As an additional deterrent, the court can then consider if there's been any kind of benefit from the activity.

Section 108 approved.

section 109.

S. Chandra Herbert: I realize I might be sounding like a "law and order, lock 'em up, get tough on crime, throw the book at 'em" kind of guy. But hey, maybe that's where I'm at right now. Certainly, there are certain things that get people's backs up.

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I'm not Dirty Harry, but I certainly do take environmental protection seriously.

Creative sentencing. I guess the idea here is that a monetary fine is one way to get at these things, but there are other ways to try and sentence them. Could the minister provide some examples of what creative sentencing

[ Page 3254 ]

could look like?

Hon. M. Polak: Three examples. There could be other creative means that a judge could consider — for example, directing the person to perform community service. They could be directed to pay money to the Habitat Conservation Trust Fund under

part 3 of the Wildlife Act. You could require the person to publish the facts relating to what they did.

There are any number of ways of doing it, but I agree with the member that sometimes the money isn't quite enough or sometimes it's not quite the tailored effect you want.

Section 109 approved.

section 110.

S. Chandra Herbert: Just for my understanding, the breach of creative sentencing order. If somebody had been given a sentence…. Let's say they polluted the water in a local watershed, and maybe the creative order was: "Put your picture up there, apologizing to everybody, and stand there and greet the visitors to the park, sharing how upset you were that you did such a horrible thing."

Just an idea, Minister. You don't have to do it, but it's an idea.

If they refused to do that and didn't do that, is the idea here that the judge or some person could say they haven't fulfilled their duty and we're going back to a monetary order as was originally considered?

Hon. M. Polak: They could be prosecuted, so the provision simply is a backstop to the previous section.

Sections 110 and 111 approved.

section 112.

S. Chandra Herbert: This is about putting a time limit for prosecuting the offence. I'm curious. It talks about "(a) 3 years after the date on which the act or omission that is alleged to constitute the offence occurred: (

b) if the minister completes a certificate described in subsection (2), 3 years after the date on which the minister learned of the act or omission referred to in paragraph (a).

(2) A certificate purporting to have been issued by the minister, certifying the date referred to in subsection (1) (b), is proof of that date."

Is this to try to get at the fact that making…? Let's say you could pollute your land in such a way that maybe…. I think of some of the issues now that people are having with old oil tanks in their backyards where the oil may be leaking out. It may have been leaking for a long, long time, but nobody knows about it until it starts polluting somebody else's water resource.

Now, maybe the oil tank in a backyard is not a good example, but what kind of a…? How do we get at long-term offences? How do we get at those things that don't hurt us today but maybe hurt us in 50 years because of somebody contravening the Water Act in such a way that the seepage rate was so low we didn't notice it until a lot later in life?

Hon. M. Polak: It's important to make the distinction that the end liability for a user with a licence remains. There's no three-year limit on that. The Water Act, the existing one, had an 18-month limit. We've expanded that to the three years.

Yeah, I wouldn't use the oil tank example, because it's not something that you would be prosecuting, I would think. Here we're talking about offences, and it's just the nature of things that often it takes some time to gather all the necessary information in order to prosecute an offence.

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Sections 112 to 117 inclusive approved.

section 118.

S. Chandra Herbert: This provides that if a fee is not paid when it is due, then a person is liable to pay interest. Is that just the standard interest, or after a year do we increase the interest? What's the scale here? Certainly, you could save some money if you waited for a while to pay, depending on what your investment portfolio looked like — or possibly make money, I guess, would be the argument.

Is this progressive? Are we thinking about making it progressively more, the interest? How's the ministry looking to deal with this?

Hon. M. Polak: This is another one where if we had access to other staff, we could probably give you some additional information. But remember, we can cancel a licence for non-payment. I mean, that really becomes the harshest deterrent of all.

Sections 118 to 124 inclusive approved.

section 125.

S. Chandra Herbert: Fees, rentals and charges. This authorizes the Lieutenant-Governor-in-Council to establish fees, rentals and charges. Are there currently any new fees being considered? I know that we've talked about the cost of licences and the fees related to water use in the province, that there had been a consultation and a plan to look at that. Are there fees that are currently not being charged which are looking to be added by regulation?

[ Page 3255 ]

Hon. M. Polak: Staff are currently doing the work to compile the results of information gathered not only through the longer-term consultation that we undertook leading up to the act but also the recent consultation around principles that will guide rental fees and charges. Then we will take a submission forward to Treasury Board. The staff are just now working to put that information together, so there's nothing before me at this point.

V. Huntington: With regard to the consultation process, there were substantial numbers of comments on the blog and about 2,900 e-mails. Can the minister tell us anything about what the government heard during those consultation processes? Can you give us any idea at this point?

Hon. M. Polak: At this stage I could only tell you anecdotally — so what my impressions are — because I don't have that analysis from staff yet.

I would say, overall, there's a desire, certainly on the part of British Columbians, to not only protect our water but make sure that it's handled in a way that respects the very valuable resource that it is. We heard that loud and clear from people — and reinforced many of the long-held views of British Columbians that people are not interested in exporting our water, selling it to the U.S. or what have you. That's been a longstanding belief of British Columbians, and that seems, as well, to be continuing to be represented.

V. Huntington: Can the minister tell us when she expects the consultations and the data gathered to be made public and when we might be expecting to see the regulations pursuant to these consultations?

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Hon. M. Polak: All the input that we have received is on the blog. Even handwritten or typed letters have been scanned and placed on there so people can take a look at all of the comments we've received.

I don't have the staff here with me who are conducting the analysis of that, so I wouldn't be able to tell you a precise timeline at this stage. But we have to have fees and rentals in place before we actually can implement the act, so of course, we will time that with the implementation of the act.

V. Huntington: There's been quite a bit of concern over the last few years about the low fees being charged by the Oil and Gas Commission for water used in fracking. During the Water Act consultation process the government admitted there was clear support from British Columbians to raise those fees.

I'm wondering if the government is intending…. Will the government be increasing the fees it charges to the oil and gas industry for water use, especially the water used for this purpose that results in the permanent removal of the water from the hydrological system? Will you be increasing the fees presently charged?

Hon. M. Polak: The OGC would make its decisions with respect to the short-term-use permits that it grants. With respect to the longer term — the licences that we grant — that will be part of what we're considering as we put together the new fees and rental structure.

Sections 125 to 128 inclusive approved.

section 129.

S. Chandra Herbert: Is this a change from current regulations? I see that this would allow the amending of the

schedule to designate a stream as a protected river. I just wanted to know: is this a change?

Hon. M. Polak: A change in the sense that it is pulling together parts of two other acts — one being the old Water Act and one being the Fish Protection Act.

S. Chandra Herbert: When was the last time a protected river was added to the schedule, and when was the last time a protected river was deleted from the schedule?

Hon. M. Polak: There have been no changes since the bill was brought in, in 1997.

S. Chandra Herbert: What thinking goes into adding a river as a protected river?

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Hon. M. Polak: The list essentially covers all the large salmon-bearing rivers in B.C. In all likelihood, there won't be an addition to that list because we've pretty much captured them all with this legislation.

Sections 129 to 141 inclusive approved.

section 142.

S. Chandra Herbe