British Columbia Hansard — 20141106pm Hansard v17n7

20141106pm-Hansard-v17n7

British Columbia — Debates (Hansard)

Th ird Session, 40th Parliament OFFICIAL REPORT OF DEBATES OF THE LEGISLATIVE ASSEMBLY (HANSARD) THE HONOURABLE LINDA REID, SPEAKER ISSN 0709- 1281 (Print) ISSN 1499-2175 (Online) Th ursday, November 6, 2014 Aft ernoon Sitting Volume 17, Number 7

PROVINCE OF BRITISH COLUMBIA (Entered Confederation July 20, 1871) LIEUTENANT-GOVERNOR Her Honour the Honourable Judith Guichon, OBC Third Session, 40th Parliament SPEAKER OF THE LEGISLATIVE ASSEMBLY Honourable Linda Reid EXECUTIVE COUNCIL Premier and President of the Executive Council .............................................................................................................. Hon. Christy Clark Deputy Premier and Minister of Natural Gas Development and Minister Responsible for Housing ......................Hon.

Rich Coleman Minister of Aboriginal Relations and Reconciliation ......................................................................................................... Hon. John Rustad Minister of Advanced Education ............................................................................................................................................ Hon. Amrik Virk Minister of Agriculture ........................................................................................................................................................ Hon.

Norm Letnick Minister of Children and Family Development ....................................................................................................... Hon. Stephanie Cadieux Minister of Community, Sport and Cultural Development ........................................................................................... Hon. Coralee Oakes Minister of Education ..................................................................................................................................................... Hon.

Peter Fassbender Minister of Energy and Mines and Minister Responsible for Core Review .....................................................................Hon. Bill Bennett Minister of Environment ..........................................................................................................................................................Hon. Mary Polak Minister of Finance .................................................................................................................................................. Hon.

Michael de Jong, QC Minister of Forests, Lands and Natural Resource Operations......................................................................................Hon. Steve Th omson Minister of Health ............................................................................................................................................................... Hon. Dr. Terry Lake Minister of International Trade and Minister Responsible for Asia Pacifi c Strategy and Multiculturalism ..................Hon.

Teresa Wat Minister of Jobs, Tourism and Skills Training and Minister Responsible for Labour ...................................................Hon. Shirley Bond Minister of State for Tourism and Small Business ....................................................................................................Hon. Naomi Y amamoto Minister of Justice ...............................................................................................................................................................Hon.

Suzanne Anton Minister of Social Development and Social Innovation......................................................................................................Hon. Don McRae Minister of Technology, Innovation and Citizens' Services ................................................................................... Hon. Andrew Wilkinson Minister of Transportation and Infrastructure ......................................................................................................................Hon.

Todd Stone LEGISLATIVE ASSEMBLY Leader of the Offi cial Opposition ...................................................................................................................................................John Horgan Deputy Speaker .............................................................................................................................................................................Douglas Horne Assistant Deputy Speaker ...............................................................................................................................................................

Raj Chouhan Deputy Chair, Committee of the Whole ....................................................................................................................................... Marc Dalton Clerk of the Legislative Assembly ................................................................................................................................................... Craig James Deputy Clerk and Clerk of Committees .................................................................................................................................

Kate Ryan-Lloyd Sessional Law Clerk ...................................................................................................................................................Roderick MacArthur, QC Sergeant-at-Arms ................................................................................................................................................................................. Gary Lenz

ALPHABETICAL LIST OF MEMBERS Anton, Hon. Suzanne (BC Liberal) .............................. Vancouver-Fraserview Ashton, Dan (BC Liberal).....................................................................Penticton Austin, Robin (NDP) ................................................................................ Skeena Bains, Harry (NDP) ....................................................................Surrey-Newton Barnett, Donna (BC Liberal) ............................................... Cariboo-Chilcotin Bennett, Hon.

Bill (BC Liberal) ...................................................Kootenay East Bernier, Mike (BC Liberal) ................................................... Peace River South Bing, Dr. Doug (BC Liberal) ................................ Maple Ridge–Pitt Meadows Bond, Hon. Shirley (BC Liberal) ........................... Prince George–Valemount Cadieux, Hon. Stephanie (BC Liberal) ................................Surrey-Cloverdale Chandra Herbert, Spencer (NDP) .................................Vancouver–West End Chouhan, Raj (NDP) ...........................................................

Burnaby-Edmonds Clark, Hon. Christy (BC Liberal) ........................................ Westside-Kelowna Coleman, Hon. Rich (BC Liberal) ...........................Fort Langley–Aldergrove Conroy, Katrine (NDP) .............................................................. Kootenay West Corrigan, Kathy (NDP) ..................................................... Burnaby–Deer Lake Dalton, Marc (BC Liberal) ............................................. Maple Ridge–Mission Darcy, Judy (NDP) ..................................................................New Westminster de Jong, Hon.

Michael, QC (BC Liberal) .............................. Abbotsford West Dix, Adrian (NDP)............................................................Vancouver-Kingsway Donaldson, Doug (NDP) ......................................................................... Stikine Eby, David (NDP) ..........................................................Vancouver–Point Grey Elmore, Mable (NDP) ................................................... Vancouver-Kensington Farnworth, Mike (NDP) ............................................................ Port Coquitlam Fassbender, Hon.

Peter (BC Liberal) ................................... Surrey-Fleetwood Fleming, Rob (NDP) .......................................................... Victoria–Swan Lake Foster, Eric (BC Liberal) .......................................................Vernon-Monashee Fraser, Scott (NDP) ............................................................Alberni–Pacifi c Rim Gibson, Simon (BC Liberal) ............................................. Abbotsford-Mission Hamilton, Wm.

Scott (BC Liberal) .................................................Delta North Hammell, Sue (NDP) .................................................... Surrey–Green Timbers Heyman, George (NDP) .................................................... Vancouver-Fairview Hogg, Gordon (BC Liberal) ............................................... Surrey–White Rock Holman, Gary (NDP) .......................................Saanich North and the Islands Horgan, John (NDP) .......................................................................

Juan de Fuca Horne, Douglas (BC Liberal) ..............................Coquitlam–Burke Mountain Hunt, Marvin (BC Liberal) ....................................................Surrey-Panorama Huntington, Vicki (Ind.) ..................................................................Delta South James, Carole (NDP) .........................................................Victoria–Beacon Hill Karagianis, Maurine (NDP) ........................................Esquimalt–Royal Roads Krog, Leonard Eugene (NDP) .............................................................

Nanaimo Kwan, Jenny Wai Ching (NDP) ........................... Vancouver–Mount Pleasant Kyllo, Greg (BC Liberal) ........................................................................ Shuswap Lake, Hon. Dr. Terry (BC Liberal) ....................Kamloops–North Th ompson Larson, Linda (BC Liberal) .........................................Boundary-Similkameen Lee, Richard T. (BC Liberal) ......................................................Burnaby North Letnick, Hon.

Norm (BC Liberal) ..............................Kelowna–Lake Country Macdonald, Norm (NDP) ....................................Columbia River–Revelstoke McRae, Hon. Don (BC Liberal) .................................................. Comox Valley Martin, John (BC Liberal) ..................................................................Chilliwack Morris, Mike (BC Liberal) ..................................... Prince George–Mackenzie Mungall, Michelle (NDP) ..........................................................Nelson-Creston Oakes, Hon.

Coralee (BC Liberal) .............................................Cariboo North Pimm, Pat (BC Liberal) .........................................................Peace River North Plecas, Dr. Darryl (BC Liberal) .............................................Abbotsford South Polak, Hon. Mary (BC Liberal) .............................................................. Langley Popham, Lana (NDP) ...................................................................Saanich South Ralston, Bruce (NDP) ................................................................ Surrey-Whalley Reid, Hon.

Linda (BC Liberal) ..................................................Richmond East Reimer, Linda (BC Liberal) ........................................ Port Moody–Coquitlam Rice, Jennifer (NDP) ........................................................................North Coast Robinson, Selina (NDP) .............................................Coquitlam-Maillardville Routley, Bill (NDP) .................................................................. Cowichan Valley Routley, Doug (NDP) ............................................Nanaimo–North Cowichan Rustad, Hon.

John (BC Liberal) ................................................ Nechako Lakes Shin, Jane Jae Kyung (NDP) ...............................................Burnaby-Lougheed Simons, Nicholas (NDP) ................................... Powell River–Sunshine Coast Simpson, Shane (NDP) ..................................................... Vancouver-Hastings Stilwell, Michelle (BC Liberal) ........................................ Parksville-Qualicum Stilwell, Dr. Moira (BC Liberal) ........................................ Vancouver-Langara Stone, Hon. Todd (BC Liberal) .........................

Kamloops–South Th ompson Sturdy, Jordan (BC Liberal) ..................................West Vancouver–Sea to Sky Sullivan, Sam (BC Liberal) ...........................................Vancouver–False Creek Sultan, Ralph (BC Liberal) ..................................... West Vancouver–Capilano Tegart, Jackie (BC Liberal) ............................................................Fraser-Nicola Th omson, Hon. Steve (BC Liberal) .......................................Kelowna-Mission Th ornthwaite, Jane (BC Liberal) ..........................

North Vancouver–Seymour Th roness, Laurie (BC Liberal).................................................Chilliwack-Hope Trevena, Claire (NDP) .................................................................... North Island Virk, Hon. Amrik (BC Liberal) ............................................. Surrey-Tynehead Wat, Hon. Teresa (BC Liberal) .............................................. Richmond Centre Weaver, Dr. Andrew (Ind.) .......................................... Oak Bay–Gordon Head Wilkinson, Hon. Andrew (BC Liberal) ........................ Vancouver-Quilchena Y amamoto, Hon.

Naomi (BC Liberal) ................ North Vancouver–Lonsdale Y ap, John (BC Liberal) ......................................................Richmond-Steveston LIST OF MEMBERS BY RIDING Abbotsford-Mission ......................................................................Simon Gibson Abbotsford South ..................................................................... Dr. Darryl Plecas Abbotsford West ...................................................... Hon. Michael de Jong, QC Alberni–Pacifi c Rim ..........................................................................

Scott Fraser Boundary-Similkameen ................................................................ Linda Larson Burnaby–Deer Lake ................................................................... Kathy Corrigan Burnaby-Edmonds ..........................................................................Raj Chouhan Burnaby-Lougheed .............................................................Jane Jae Kyung Shin Burnaby North .............................................................................. Richard T.

Lee Cariboo-Chilcotin ........................................................................Donna Barnett Cariboo North .................................................................... Hon. Coralee Oakes Chilliwack ......................................................................................... John Martin Chilliwack-Hope ....................................................................... Laurie Th roness Columbia River–Revelstoke .................................................. Norm Macdonald Comox Valley...........................................................................Hon.

Don McRae Coquitlam–Burke Mountain .....................................................Douglas Horne Coquitlam-Maillardville........................................................... Selina Robinson Cowichan Valley ................................................................................ Bill Routley Delta North .........................................................................Wm.

Scott Hamilton Delta South...............................................................................Vicki Huntington Esquimalt–Royal Roads .....................................................Maurine Karagianis Fort Langley–Aldergrove ...................................................Hon. Rich Coleman Fraser-Nicola.................................................................................... Jackie Tegart Juan de Fuca .....................................................................................John Horgan Kamloops–North Th ompson ............................................ Hon. Dr.

Terry Lake Kamloops–South Th ompson ..................................................Hon. Todd Stone Kelowna–Lake Country ..................................................... Hon. Norm Letnick Kelowna-Mission .............................................................. Hon. Steve Th omson Kootenay East .......................................................................... Hon. Bill Bennett Kootenay West ............................................................................ Katrine Conroy Langley.......................................................................................Hon.

Mary Polak Maple Ridge–Mission ..................................................................... Marc Dalton Maple Ridge–Pitt Meadows ........................................................ Dr. Doug Bing Nanaimo ........................................................................... Leonard Eugene Krog Nanaimo–North Cowichan ......................................................... Doug Routley Nechako Lakes ........................................................................ Hon.

John Rustad Nelson-Creston ........................................................................Michelle Mungall New Westminster ............................................................................... Judy Darcy North Coast......................................................................................Jennifer Rice North Island .................................................................................. Claire Trevena North Vancouver–Lonsdale ........................................Hon.

Naomi Y amamoto North Vancouver–Seymour ..................................................Jane Th ornthwaite Oak Bay–Gordon Head ...................................................... Dr. Andrew Weaver Parksville-Qualicum .................................................................Michelle Stilwell Peace River North ................................................................................

Pat Pimm Peace River South ............................................................................Mike Bernier Penticton............................................................................................ Dan Ashton Port Coquitlam ..........................................................................Mike Farnworth Port Moody–Coquitlam ................................................................Linda Reimer Powell River–Sunshine Coast ................................................. Nicholas Simons Prince George–Mackenzie .............................................................

Mike Morris Prince George–Valemount ................................................... Hon. Shirley Bond Richmond Centre ......................................................................Hon. Teresa Wat Richmond East ..........................................................................Hon. Linda Reid Richmond-Steveston ..............................................................................John Y ap Saanich North and the Islands .................................................... Gary Holman Saanich South ................................................................................

Lana Popham Shuswap ................................................................................................Greg Kyllo Skeena .............................................................................................. Robin Austin Stikine ....................................................................................... Doug Donaldson Surrey-Cloverdale ....................................................... Hon. Stephanie Cadieux Surrey-Fleetwood ........................................................... Hon.

Peter Fassbender Surrey–Green Timbers .................................................................. Sue Hammell Surrey-Newton ................................................................................. Harry Bains Surrey-Panorama ........................................................................... Marvin Hunt Surrey-Tynehead ......................................................................Hon. Amrik Virk Surrey-Whalley..............................................................................

Bruce Ralston Surrey–White Rock ....................................................................... Gordon Hogg Vancouver-Fairview ..................................................................George Heyman Vancouver–False Creek ................................................................... Sam Sullivan Vancouver-Fraserview ......................................................Hon.

Suzanne Anton Vancouver-Hastings ....................................................................Shane Simpson Vancouver-Kensington .................................................................Mable Elmore Vancouver-Kingsway..........................................................................Adrian Dix Vancouver-Langara .................................................................Dr. Moira Stilwell Vancouver–Mount Pleasant .........................................

Jenny Wai Ching Kwan Vancouver–Point Grey .........................................................................David Eby Vancouver-Quilchena ................................................ Hon. Andrew Wilkinson Vancouver–West End ...............................................

Spencer Chandra Herbert Vernon-Monashee ...............................................................................Eric Foster Victoria–Beacon Hill .......................................................................Carole James Victoria–Swan Lake.........................................................................Rob Fleming West Vancouver–Capilano ............................................................. Ralph Sultan West Vancouver–Sea to Sky ..........................................................Jordan Sturdy Westside-Kelowna ................................................................

Hon. Christy Clark Party Standings: BC Liberal 49; New Democratic 34; Independent 2

CONTENTS Th ursday, November 6, 2014 Aft ernoon Sitting Page Routine Business Introductions by Members ..................................................................................................................................................... 5277 Point of Privilege (continued) ................................................................................................................................................. 5277 Hon.

M. de Jong Orders of the Day Committee of the Whole House ............................................................................................................................................ 5278 Bill 2 — Greenhouse Gas Industrial Reporting and Control Act (continued) A. Weaver Hon. M. Polak S. Chandra Herbert V . Huntington

THURSDAY , NOVEMBER 6, 2014 Th e House met at 1:32 p.m. [Madame Speaker in the chair.] Routine Business Introductions by Members J. Y ap: I have a series of introductions — very appro- priate as we move towards Remembrance Day. With us today in the gallery is a group from the Chinese Canadian Military Museum Society. Members of the House will recall that some of these folks have vis- ited the parliament over the years, and we’re delighted that they were able to join us again.

Th ey were in Victoria to participate in a ceremony this morning at the William Head correctional facility, where there is a gravesite which contains the remains of a num- ber of Chinese who arrived in Canada 100 years ago dur- ing the First World War on their way to Europe as part of the Chinese Labour Corps. It’s not a widely known part of the history of the First World War, but over 100,000 Chinese were brought to Europe, either through Canada or from China to Europe, to participate in the war, providing labour to the Allies in the First World War.

It’s not widely known, but it’s estimated 70,000 trav- elled through Canada during that period of time, the First World War. Some perished, and a number were bur- ied at William Head correctional facility. Today a plaque was placed by this group, including some World War II veterans. With your forbearance, Madame Speaker, I’ d like to introduce some of them who are here: World War II veteran George Chow; World War II veteran Peggy Lee; World War II veteran Gordon Quan; along with the president of the Chinese Canadian Military Museum Society, King Wan.

And with them, veterans Samuel Chan; Donald Chapman; Vincent Chan; George Ing; Rosalind Ing; Paul Lee; Alison Maclean, who is a documentary fi lm-maker who’s widely known for her work in documenting the contribution of Chinese-Canadians in the World Wars; Kit Wong; Tommy Wong; Edmund Wu; Wei Fang Zhou; Harry Chow; and Jimmy Chow. Also with us in the gallery today is the assistant warden of William Head correctional facility, Mr. Anthony Baldo. Would the House please off er a warm welcome to our guests. R. Lee: Hon. Speaker, may I seek leave to make an introduction? Madame Speaker: Please proceed. [1335] R.

Lee: I would like to continue from my colleague’s introductions. Actually, my Uncle Monty Lee and Auntie Meu One Lee are here today. My uncle is a veteran. I also had another uncle, Edward Lee, but he passed away last month, so he couldn’t be here with us today. Monty and my family are very close together with my grandfather. My grandfather came here 101 years ago. I also would like to introduce some residents from Burnaby. We have Bing Wong. He’s very active in the ab- original community as well. He came to my coff ee meet- ing almost every month. I also have Howard Lee.

Howard is the founder of the Chinese-Canadian Military Museum, also the past president. We also have Carrie Kwong, vet- eran, and Albert Wu, major retired, from Burnaby. I also would like to introduce Tim Fang. He’s also a dir- ector of the Chinese Canadian Military Museum. We have heard about the William Head Station plaque. Th e plaque was actually a joint project with the Chinese Canadian Military Museum Society, the William Head Institution and the Canadian Forces Base Esquimalt.

Th ese three organizations have put up this plaque to com- memorate the 100th anniversary of the First World War and, also, the Chinese-Canadian pioneering immigrants — as well as, of course, the members of the Chinese Labour Corps who transited through the site. Would the House help me to make them all welcome. Point of Privilege (continued) Hon.

M. de Jong: Madame Speaker, before calling the orders of the day, I’ d like to respond to a matter of priv- ilege that was advanced by the member for Burnaby– Deer Lake earlier this week, on November 4, specifi cally alleging that the Minister of Advanced Education had deliberately misled the House during an exchange in question period that took place on March 5, 2014. Members will know, and I believe you appreciate as well, that I take the suggestion that anyone in this cham- ber would intentionally make a misleading statement very, very seriously.

Th e rules and conventions of this place have evolved over the centuries, and its ability to operate eff ectively on behalf of our citizens is dependent upon those rules and conventions being respected by all members. Th e member refers in her submission to the following answer provided by the Advanced Education Minister during the course of that exchange, specifi cally: “Th ere’s no shortage of outlandish comments that I can attribute to the member for Vancouver–Point Grey, and this certainly is another one of those. “Kwantlen Polytechnic University certainly reports all their earnings.

Like I said before, anything that’s earned over $75,000 is reportable — reportable to the taxpayers of British Columbia, and it’s available for all to see. ” What she does not do is stipulate with particularity in her submission which part of the answer she is relying 5277

British Columbia Debates5278 Thursday, November 6, 2014 upon in support of her proposition that the House had been misled. I’ll come to that in a moment. Th e Speaker is also aware that over time this House had set down some detailed guidelines for what is and what is not considered to be a matter of privilege. Appendix E of Parliamentary Practice in British Columbia , third edition, page 294,

section 15, states: “ A dispute between members as to allegations of fact does not amount to a matter of privilege. ” Th is practice is further described on page 296, where it states: “Unless there is evidence that a member has deliberately misled the House, a matter of privilege has not been established. ” Madame Speaker, based on the procedural criteria I have just described, I believe you will fi nd that the appli- cation must fail.

However, I also address the substance of the allegations as best they can be understood from the member’s submission. [1340] Dealing now specifically with the statement made by the Minister of Advanced Education, the fi rst part: “Th ere’s no shortage of outlandish comments that I can attribute to the member for Vancouver–Point Grey, and this is certainly another one of these. ” Th is certainly represents a general rebuttal of the ac- cusations made by the member for Vancouver–Point Grey and for that reason alone, I would suggest, fails any test of privilege.

I might observe, however, that within the very report that the member from Burnaby cites in support of her submission, there exists specifi c information and fi nd- ings which would support the Advanced Education Minister’s position.

At page 8 of that report, which has already been provided to the Chair: “From a review of documentation and through interviews, it appears that neither KPU’s board of governors nor its administrative staff were aware of the terms of Lavack’s off er letter and agreement or the pre-employment contract. ” Th en later at page 11: “My review did not reveal infor- mation to suggest that the then board of governors was aware of the Lavack off er letter of employment or pre- employment contract. ” Madame Speaker, I would submit that this is entire- ly inconsistent with the member for Vancouver–Point Grey’s assertion that the minister had personal know- ledge of the executive compensation matters.

Similarly, the report prepared by Mr. Mingay dated June 13, 2014, also provides information and fi ndings that are determinative, in my view, of the question as to whether the House was misled at all, much less deliber- ately misled. In the second part of his answer, the Advanced Education Minister replied as follows. “KPU certainly reports all their earnings. Like I said before, anything that’s earned over $75,000 is reportable — reportable to the taxpayers of B.C., and it’s available for all to see. ” In his report, on pages 10 and 11, Mr. Mingay writes as follows.

He asks the question: was disclosure consistent with PSEC’s compensation reporting guidelines? “Y es, in relation to salary and other benefi ts. Th e amount paid under the pre-employment contract was disclosed as an amount paid to a supplier of services pursuant to the Financial Information Act. KPU maintains that in doing so, it fully met its obligations. However, in my view, it also would…reasonably have been con- sidered to be compensation, so it should also have been disclosed under the compensation reporting guidelines. ” At page 21 Mr.

Mingay concludes as follows. “It is the position of KPU administrative staff that KPU did dis- close the amounts paid to both Dr. Lavack and Dr. Davis under their pre-employment contracts in the statement of financial information prepared pursuant to the Financial Information Act.

In my opinion, more detailed disclosure under the guidelines was required to comply with the PSEC compensation reporting guidelines. ” So whilst I appreciate that the member for Vancouver– Point Grey and his colleagues have their own views con- cerning the adequacy of the disclosure undertaken by Kwantlen Polytechnic University in these circumstances — and to be sure, Mr. Mingay in his report goes on to make specifi c fi ndings and recommendations on that question — I would again repeat my submission. A dis- pute between members as to an allegation of facts or an

interpretation of facts, in the absence of evidence of an intention to deliberately mislead, does not constitute a breach of privilege of this House. Th ere is, Madame Speaker, in my view and submission, no such evidence. In fact, I would suggest that in this case there is abundant evidence, ironically provided by the member for Burnaby–Deer Lake herself, to the contrary. Accordingly, I would respectfully submit that the mem- ber’s application should fail. Madame Speaker: I thank you for the submission. I will carefully consider the submissions and take the items under advisement.

Th ank you both for your submissions. Hon. M. de Jong: Continued committee stage debate on Bill 2. [1345] Orders of the Day Committee of the Whole House BILL 2 — GREENHOUSE GAS INDUSTRIAL REPORTING AND CONTROL ACT (continued) Th e House in Committee of the Whole on Bill 2; D. Horne in the chair. Th e committee met at 1:46 p.m. On

section 22 (continued).

British Columbia DebatesThursday, November 6, 2014 5279 A. Weaver: Resuming to

section 22, if we look at sub- section (5) of

section 22, it talks about a list of persons who are included here. It’s “a director, receiver, receiver man- ager, offi cer, employee, banker, auditor or agent of a per- son who is the subject of an inspection under this section. ” My question here is: are there any employees who are exempt from this list? Is this list inclusive, or are there additional people who may have to be included in such a list at a later date? If so, what is the process to do that? Hon. M. Polak: It is intended to be comprehensive and to cover anyone who may be in charge of information relevant to an inspection or investigation.

It does mirror similar compliance and enforcement legislation that we have on the books, and of course, the term “employee” is pretty broad and pretty all-encompassing. A. Weaver: Under the same subsection might the minister describe what is meant by or is expected by the terms “without charge” and “unreasonable delay”? How does that apply, and what does unreasonable delay mean in her mind? Hon. M. Polak: With respect to that portion of section (5), “without charge, ” they are not allowed to charge a fee for providing that information. Th e “unreasonable delay” is the usual test of reasonableness.

It needs to be reason- able with respect to the time taken as compared to the request that has been made. So if there was some dispute about that, the test that the court would apply would be that of reasonableness based on the circumstances.

Section 22 approved on division. On

section 23. [1350] A. Weaver: With respect to the administrative penal- ties, I have a couple of questions here. Might the minister possibly describe what is the size or scope of the antici- pated penalties? For instance, if they are monetary pen- alties, what sort of magnitude are we talking about here? Hon. M. Polak: Th ey are intended to be or they will be fi nancial penalties. Again, the usual process will apply. Th e act, assuming that it is passed by this House…. Th en a fee paper would be developed. Th at would be taken through the Treasury Board process. S.

Chandra Herbert: Would the intention of the ad- ministrative penalties be such that they are much high- er than how much a company might save if they tried to game the system? Of course, the concern is that you want to ensure the penalty is big enough that people don’t profi t if they break the rule and pay a little bit less to get around it. Hon. M. Polak: Th at’s always the principle that one at- tempts to apply to the initiation of administrative penalties of this nature, but I’ d be unable to provide the member with any kind of a quantum until it goes through the process. A.

Weaver: If the penalties are deemed to be insuffi - ciently high, what’s the process or feedback back into gov- ernment, back through Treasury Board, to determine a value or rate at which a penalty might be deemed appro- priate so as to serve as actually a deterrent, as opposed to something that somebody might be just willing to pay. Is there a process documented somewhere as to how that would feed back to future Treasury Board decisions? Hon. M. Polak: It’s no diff erent from any other kind of penalty that is levied. Th ere are any number of ways.

A person could do something as simple as coming to their local MLA and saying: “I think this is egregious and terrible, and you guys should change it. ” Th at mem- ber could perhaps take that concern forward to Treasury Board. It could be something that ends up in a dispute in court, where a company decides they dispute the amount that’s been charged and they ask the court for remedy, alleging that the fee is too high, that it’s unreasonable, what have you. So any number of ways, but not any diff erent than any other

schedule of administrative penalties that we have in place. A. Weaver: Further, the legislation outlines in quite some detail what the outcomes are in case a report is not submitted on time — the operator fails to submit it on time — or it’s inaccurate. My question, then, is: what is government’s recourse, and what is the procedure for re- course, in the case that penalties are not paid in full and on due date as assigned? Hon. M. Polak: Again, it’s similar to what takes place, for example, under the Environmental Management Act. If there’s not satisfaction with respect to a company pay- ing their penalties, then we can escalate that to court. We can seek injunctions or seek orders.

Section 23 approved on division. On

section 24. A. Weaver: I was wondering if the minister might be able to help me out here. I fi nd this very unusual lan- guage. I recognize that it’s probably embedded in other legislation, but the term “on a balance of probabilities” is used here. Now, I recognize that there may be some legal context for this, but certainly from a scientifi c con- text, that makes no sense. I was wondering if the minister might actually let me know what specifi c criteria are used to determine on a balance of probabilities.

British Columbia Debates5280 Thursday, November 6, 2014 [1355] Perhaps this should be addressed to the Justice Minister, because I don’t know what this means in terms of a legal term. I suspect it has important ramifi cations for decision-making in light of the fact that if there was a scientist to be reading this, they would actually look at this with eyes glazed over, recognizing that…. What does that mean? It’s not on balance of probabilities; it is a prob- ability with specifi c criteria. Beyond that probability, you would make a decision. I seek leave to make an introduction. Leave granted.

Introductions by Members A. Weaver: In the gallery have just joined us 44 grade 5 students from an elementary school in my riding, Glenlyon Norfolk School. Th ey’re accompanied by two teachers, Mr. Brooks and Ms. Wallace, and their jun- ior school principal, Ms. Bigelow. I’m wondering if the House here might welcome them warmly. Debate Continued Hon. M. Polak: Given the number of sections where we have encountered an apparent divergence of views between the scientifi c community and the legal com- munity, it almost seems like we should engage in some kind of summit between the two to get the language correct.

Interjection. Hon. M. Polak: No, no. Lawyers and scientists all in the same company? Now, it is language common to very many pieces of legislation. It is the standard test when it comes to civil law, as opposed to what would be in criminal law, which would be “beyond a reasonable doubt. ” A. Weaver: Th e next question is me trying to under- stand. If the minister could please clarify the diff erence between subsection (1)(b)(

i) and (ii), and how the dir- ector is expected to calculate the balance of probabilities in the case that they do not receive a compliance report from a regulated operation. Hon. M. Polak: Th e purpose of including the phrase “on a balance of probabilities” in (b)(ii) is to ensure that the test is clearly outlined. It isn’t simply up to the direc- tor’s personal opinion. Th e director must be satisfi ed in weighing some evidence back and forth with respect to the determination as to whether or not the operator has failed to meet their obligations. A.

Weaver: On that note, it does refer to a “reasonable excuse for the inaccuracy or failure. ” I’m wondering if the minister might let us know what would constitute a reasonable or good excuse. [1400] Hon. M. Polak: Again, the standard test for that evalu- ation is: could a reasonable person come to the same conclusion? A. Weaver: I must follow up on that. I recognize I’m not a lawyer, but my defi nition of a reasonable person would clearly be somebody who would be on this side of the House over in this corner here.

Perhaps the gov- ernment’s defi nition of a reasonable person might be someone who’s on that side of the House over there. My friends to my right here might determine a reasonable person is down that side of the table. My independent colleague in front might have an entirely diff erent defi n- ition of reasonable. Might the minister possibly clarify what she means by reasonable? Does it mean somebody on that side of the House? Hon. M. Polak: Th ankfully, we don’t have to only rely on what I think is reasonable. As the member points out, very many reasonable people could come to diff erent conclusions.

Remember, though, what we are about in this House when we are passing legislation. Ultimately, you are creating a framework through which any dis- puted elements could be ultimately decided by a court in judicial review, for example. To the member’s question: who decides what is rea- sonable? If there’s a dispute as to what is reasonable, that would ultimately be determined by a judge who would look to this statute and see that the test that must be ap- plied is reasonableness, that being defi ned in the section. So again, over to our legal friends who, over these many generations, have developed this framework.

I can assure the member that the reasonableness test is at work each and every day when ministers have to confront decisions and are advised that that’s the test in front of them. A. Weaver: I’m sure we can all agree that all lawyers are very reasonable people, so I take it with…. Two fi nal questions on this section. What is the time frame that the minister expects the administrative pen- alty notice to be served to the operator on? [1405] Hon. M. Polak: There are additional provisions in the act when we get on to

section 41 in

part 6, “Notice and service under this act. ” It’s probably worth noting, though, at this juncture that although a notice might not be provided to the off ender on the day when the

British Columbia DebatesThursday, November 6, 2014 5281 non-compliance begins, fi nes and penalties are levied retroactive to the date when the off ence began. A. Weaver: A fi nal question. It may be relevant to postpone this to

section 41. I’m not sure. But my ques- tion is: is there some kind of appeal process attached to this as well that the operator may actually challenge and fi le an appeal? Hon. M. Polak: Th e act does allow for appeals through the Environmental Appeal Board, and that, again, we will deal with further on in the act.

Section 24 approved. On

section 25. A. Weaver: Under subsection (1) of this

section it talks about provisions through regulation. I was won- dering if the minister might perhaps provide some detail as to what other provisions she’s anticipating pre- scribing in this regulation or whether or not this regu- lation is simply being transported from another piece of legislation. Th e Chair: Th e class from your riding is very privil- eged, as they saw a

section actually pass. Hon. M. Polak: In this

section it lays out the discre- tionary powers and under which authority the director has discretionary powers — providing, in this section, that the director only may act in his or her discretion under the direction of what is contained in the act or the regulations, so cannot choose outside of these areas to act with discretion. We’ll see further on, I believe, that there are specif- ic areas…. Or was it previous? In the previous section, in

section 24, the contrast is that in those instances the director is compelled to act. In these circumstances the director may exercise discretion. But again, as stipulated in sub (1), that must be done in accordance with the act and the regulations, so not that there would be specifi c regulations for sub 25(1) but instead outlining that any of that discretion must take place within the confi nes of the act and its attendant regulations on the whole. A. Weaver: I think the minister recognizes where I was going with this and my concern. It appears in this par- ticular

section that the director is actually being given rather strong powers, so I have a question here. What oversight is there to ensure that the director does not ac- tually abuse his or her powers in this regard, if a person has actually not followed the prescribed provisions that were listed in regulation? [1410] Hon. M. Polak: It’s actually the other way around. If you look at

section 24, here are the circumstances under which the director must act. It’s not that the director in

section 25 now has an even broader area where he can begin to act and do all sorts of terrible, egregious things to people. It’s that under sec- tion 25 there are, outside of the areas prescribed where he must act…. Anything else, he or she can actually de- cide not to act, can decide that based on the particular circumstances, the discretion is reasonably exercised to say: “No, in this particular instance I’m not going to act in that way for compliance. ” So it’s actually the reverse. Y ou’re being very strict as to…. Here are the areas where you absolutely have to act, and outside of that, you don’t have to. Y ou don’t have to move in and call some- body to account through compliance.

Section 25 approved. On

section 26. A. Weaver: I’m learning a lot about this act as we pro- ceed, so I thank the minister for her patience. I thank the Chair for his patience, and I thank the staff who are also helping us get through this. Under subsection 26(1)(a), I’m wondering if there are any case studies that can support the likelihood of an operator admitting in writing to non-compliance under this type of regulatory regime. Hon. M. Polak: Th e best example I can give is perhaps in the reporting of a facility. Th ey notice that a report they submitted to us six months ago has a typo in it, and in- stead of a six, it has a seven.

Th ey notify us: “Gosh, we’re sorry — just noticed this. ” [1415] Th at adjusts our reporting accordingly in that instance. Th en the penalty, rather than being applied from the six months previous — the daily levy of penalties…. Instead, the director can impose the penalty from the date that the admission was made. It may be an innocent mistake. Nevertheless, the pen- alty would apply, but it would apply from the date that they made the admission. A.

Weaver: I’m trying to understand subsection (3) as well, which seems to indicate that the penalties assessed to companies will be in the form of them having to re- tire compliance units and that these funds will then go towards off sets. I may be mistaken, but I’m hoping sub- section (3) could be clarifi ed by the minister for me here. Hon. M. Polak: I will fi rst address why you would even have a provision like this. It goes back to the discus- sion we had around how the holder of compliance units must handle and report those. If the non-compliance

British Columbia Debates5282 Thursday, November 6, 2014 was with respect to how they handled and reported their compliance units — and in this case we’re talking here about retirement of them — then the penalty, for example, could be that for every one unit that you got wrong, you’re going to have to not only replace that unit. But your penalty is you’re going to have to surrender two additional units. Th e reason for that is because, of course, compliance units are subject to market fl uctuation in prices.

So if one set a price as opposed to the units themselves, you could end up in a circumstance where the price is far less costly than the current going rate for a compliance unit. Th at’s the reason to have the provision. In terms of the time limit, it’s simply to ensure that it’s done in a timely way because, of course, for the period of time during which the penalty is being administered…. Between that time and the time at which those units are surrendered, the holder is getting a benefi t from having them. Th ere’s a point….

Just as your parking ticket, which I’m sure you’ve never had, you have to pay it within a cer- tain amount of time. A. Weaver: I wanted to thank the minister for that very comprehensive answer. It was very clear for me. I will say I have no further comments on this

section or the next section, hon. Chair. Sections 26 and 27 approved. On

section 28. [1420] S. Chandra Herbert: As we know, directors of corpor- ations have at some times in history been held respon- sible for negligence, for failures, whether it be industrial accidents or pollution and other incidents. I can’t say that I recall too many instances under this government, but I do know that in the past it has been discussed making this happen. I’m curious. How do we ensure that this actually is fol- lowed through on? What kind of special investigations staff would be required?

How do we ensure that the gov- ernment actually has lawyers trained to prosecute these instances to ensure that nobody walks away unscathed if they have created a problem of pollution or a clear break- ing of the laws in this province? Hon. M. Polak:

Section 28 simply ensures that, in the case of this act, joint and several liability applies, and that that applies in spite of an administrative penalty that may have been levied. With respect to enforcement through the courts, that is something that is done across government under very many diff erent statutes that govern compliance and en- forcement. It would be no diff erent than any other subject matter.

I know that the Attorney General could probably list off hundreds, if not thousands, of topics that the legal team in that ministry have to contend with, and there’s always the option for government to seek outside legal counsel if it’s a matter that is just far outside the knowledge of anyone that would be available within government. A. Weaver: I was wondering, in reading this section, if the minister could help me and please clarify whether or not this

section is actually indicating that a penalty could be imposed on an employee of a corporation re- gardless of whether or not a penalty is imposed on the corporation itself. Hon. M. Polak: Th e point here is not that an admin- istrative penalty could be applied more broadly than has already been laid out in the previous sections. Th e point here is that just because the company has been served with an administrative penalty, it doesn’t allow the em- ployee, the director, the offi cer who, as it says here, “au- thorized, permitted or acquiesced in the failure…. ” It doesn’t let them off the hook.

Th ey are still liable for that particular off ence. S. Chandra Herbert: I must say, I do like the sounds of this section. I think it’s important. Hon. M. Polak: I knew you would come around. S. Chandra Herbert: Tough on environmental crime. Tough on crime. Y es, hon. Minister, I think that is an im- portant attribute because the rule of law is something we must all abide by. I think too oft en we have turned the other cheek when it comes to environmental crimes and environmental pollution because it may not be a crime that we think harms us, but indeed, of course, if you harm the earth, you harm our home.

I just want to commend the minister for going beyond what is oft en the case, of just going aft er the corporation or the company, but actually going aft er those within the corporation who permitted these activities to occur. Nothing further on this section. Th e Chair: Shall

section 28 pass? A. Weaver: Division. Th e Chair: On division or…? A. Weaver: Division. Th e Chair: All right, division has been called. [1425-1430]

Section 28 approved unanimously on a division. [See Votes and Proceedings.]

British Columbia DebatesThursday, November 6, 2014 5283 A. Weaver: Shall I — with your leave, Hon. Chair — give people a couple of minutes to attend to their other duties as they are wandering around here, or shall I con- tinue on? Th e Chair: We can take a short recess. Th e committee recessed from 2:33 p.m. to 2:37 p.m. [D. Horne in the chair.]

Section 29 approved. On

section 30. S. Chandra Herbert: Of course, as we discussed earli- er, the concern is always that the fi ne for the crime is big- ger than the bonus you might make by breaking the law. Certainly, I know in other areas of law, that’s not always been the case. Some see breaking the law as just the cost of doing business. Of course we don’t want that to occur, as was made very clear.

I would love it if the minister would be able to share how they came to the decision to put in section (5): “ A person convicted of an off ence under subsection (1), (2), (3) or (4) is liable to a fi ne of not more than $1 500 000 or imprisonment for a term of not more than 2 years, or both. ” I ask that because, of course, with some industries, $1.5 million could be made in a couple of hours, depending on who you believe.

According to the minister or the Premier, we’re going to make billions of dollars almost in- stantly from the LNG industry, so of course $1.5 million doesn’t seem that much when you consider how much money could be made in an industry and, for a certain amount of time, breaking the law. Just curious. It sounds like a lot of money — $1.5 million — right now. But if you put it up in context of how much money could be made by some industries in a short period of time, it may actually not be that much. I would be inter- ested in how that fi gure was arrived at. [1440] Hon. M.

Polak: Th ese penalties have to be consist- ent with the nature of the off ence. Of course, reading through the section, these are off ences relating to re- porting, breaches of confi dentiality, etc. Th ey are also made consistent with other statutes under the natural resource sector. S. Chandra Herbert: As I understand it, this is just a set amount that is normally used in these circumstances. Was any review given to see whether or not that amount needed to be increased? Of course, with infl ation, as it goes, that amount decreases over time in relation to the total value of the dollar. Hon. M.

Polak: Sadly, I’ve been in this place long enough that, although I’m not a lawyer, I actually found myself understanding this. I’ve been here too long, I guess. An important distinction here. We’ve been discuss- ing administrative penalties. Th ose are automatic. Th ey are levied by us, and they can be appealed through us, through the Environmental Appeal Board. Ultimately, they could be appealed in a court of law through judi- cial review, or, in the reverse, if we were trying to collect something, we could seek an order. In this case, this sets out the provisions for an off ence.

An off ence is something that a person would have to be convicted of in court. We apply the penalties that you see here, or the judge applies the penalties you see here, consistent with other, similar types of off ences. Th e way we approach that in constructing

an act is to work with the Attorney General’s ministry to ensure that whatever penalties we have outlined for those off ences are consist- ent with legal precedent and with what exists in other legislation. S. Chandra Herbert: Would the minister be able to illustrate or attempt to illustrate some of the kinds of of- fences that might be considered under this section? Hon. M. Polak: Essentially three categories: they haven’t purchased enough compliance units, be they off sets or what have you; they have not reported their emissions; or they have sought to obstruct a compliance offi cer in the performance of their duties.

Section 30 approved. On

section 31. A. Weaver: Under subsection (1) of

section 31, I’m wondering if the minister might be able to clarify what will be used or what criteria will be used to distinguish between “false or misleading information” and just an error. [1445] Hon. M. Polak: Our law enforcement in Environment operates very similarly to the law enforcement that you’ d be familiar with in any town. Th is is an off ence. Ultimately, conviction would be determined by a judge. Th is is the provision that outlines what it is that’s illegal, just in the same way that we have statutes on the books in Canada that say that it’s against the law to rob a bank.

If the police offi cer thought you had robbed a bank, they would investigate, collect evidence, recommend charges to Crown. Th e case would then go before a judge. It would be the judge who would determine whether or not you had actually contravened this

section of the act and if, in fact, that had been proven.

British Columbia Debates5284 Thursday, November 6, 2014 A. Weaver: Th at answer is very helpful. It presumably will also answer my second question on this, which is on the diff erence between “knowingly contravening” and just “contravening, ” which is the diff erence of $1 million in the fi ne between sections (2) and (3). May I assume that this also will be done through the court of law and that a judge would determine that? Hon. M. Polak: Y es.

Section 31 approved. On

section 32. A. Weaver: I just had one quick question here to clarify, again, that this would mean that under this

section the $1.5 million or…. Th is fi gure could be assessed each and every day that the company is in off ence. Hon. M. Polak: Y es, that’s correct. Th at’s consistent with other acts such as the Environmental Management Act.

Section 32 approved. On

section 33. S. Chandra Herbert: Th is

section deals with the lia- bility of directors and offi cers. We’ve earlier discussed the liability of other staff or other people within a cor- poration who might acquiesce and permit or authorize an off ence. I’m just curious. What kind of examples does the min- istry have where directors or offi cers of the corporation have been fi ned, given an off ence or held liable within British Columbia? I’ve certainly read about corporations themselves being charged for compliance issues. I’ve not heard a lot about the directors and the offi cers themselves being held liable.

If there are some examples, or if this is fairly common and I’m just not aware of it, that would be helpful for me to know. Hon. M. Polak: I don’t have a specific example of something that has already occurred, but it would apply in this way. If, for the sake of discussion, one of the of- fences we spoke about — obstructing a natural resource offi cer, a compliance offi cer….

If a company had been successfully prosecuted for committing that off ence, that would not stop a separate prosecution of an individual if there was enough evidence to lay charges that that in- dividual had, in the words of the act here, “authorized, permitted or acquiesced in the off ence. ” Th ey would be subject, potentially, to individual pros- ecution in spite of the fact that the company had already been prosecuted and convicted. S. Chandra Herbert: Would this also apply in a case where a company broke the law, didn’t report properly, did a variety of things — and then was found guilty, but was bankrupt?

Th en the liability could potentially be passed on to the directors? Is that a consideration here? [1450] Hon. M. Polak: Y es, the individuals would be liable in that case, or could be found liable in that case. S. Chandra Herbert: I’m curious. Subsection (2) says: “Subsection (1) applies whether or not the corporation is prosecuted for or convicted of the off ence. ” Is this saying that, basically, it gives the prosecutor the leeway to go aft er a corporate director who maybe broke the law, but the corporation itself didn’t?

I’m just trying to visualize what that could look like if the corporation followed the law and reported properly, but a director didn’t. I’m just trying to understand how that would work. Hon. M. Polak: A couple of circumstances I can pro- vide as an example. I’m sure it’s not exhaustive. Firstly, if, for example, you had an employee who, in spite of direc- tion from the company, nevertheless, still obstructed the activities of an inspecting offi cer — even though the com- pany itself had clear policy, given clear direction — that individual could be found to have committed an off ence.

Th is would also apply in the case where years have gone by and the company no longer exists but an in- dividual still is alive and well and a prosecution can be launched.

Section 33 approved. On

section 34. A. Weaver: I was wondering if, under subsections (1), (2), (3)…. Could the minister please clarify if my under- standing of this is correct? An administrative penalty can later result in an off ence conviction, but an off ence conviction cannot be later followed by an administrative penalty. If so, why is this the case? Hon. M. Polak: With respect to sub (2), the judge, in considering what penalty to impose, is allowed to con- sider the fact that this individual or corporation may have already been subjected to an administrative penalty. Th ey can take that into consideration.

Subsection (3) is the issue of double jeopardy. If they haven’t already been levied an administrative penalty and then they are prosecuted and a penalty is applied, you can’t then retroactively go back and apply an adminis- trative penalty that you didn’t apply before.

Section 34 approved.

British Columbia DebatesThursday, November 6, 2014 5285 On

section 35. A. Weaver: I just have a couple of very short questions on the numbers three years and 18 months. My fi rst ques- tion. Th e two diff erent time periods, three years versus 18 months — are these consistent with other time per- iods in other acts under the minister’s portfolio, or under Energy and Mines, with respect to off ences? Or are these diff erent, unique to this act? What is the motivation for coming up with these, the justifi cation for these particu- lar numbers? [1455] Hon. M. Polak: Th ey are consistent with provisions across the natural resource sector. Sections 35 and 36 approved. On

section 37. S. Chandra Herbert: Application for investigation. Th is

section seems to defi ne how you would go about ask- ing for an investigation into a company or a business that is breaking the law — applying to the chief conservation offi cer. Y ou must be at least 18 years of age. I’m just curious. What happens if somebody believes there needs to be an investigation into a company but perhaps they work within that company? A whistle- blower, so to speak, applies to the government stating their name and address, the nature of the alleged off ence and the name of each person alleged to have done some- thing or to have failed to do something.

What sort of protections would exist for such a per- son, given that it may be diffi cult for the average British Columbian to look at a business and say, “Th ey are break- ing the law by polluting too much and not reporting appropriately how many million tonnes of greenhouse gases they are emitting” — since it’s not something that, of course, is easily obvious to the naked eye? Hon. M. Polak: With respect to any provisions pro- tecting individuals who approach the question of lodging a complaint, it’s not covered within this legislation.

I don’t have suffi cient knowledge of broad legal matters such as that across government, so I would not be able to answer. S. Chandra Herbert: I ask because I think it’s import- ant. Obviously, in our own offi ces sometimes we are ap- proached by people who have concerns about the way things are handled. Obviously, if they are criminal in na- ture, then they have to go to the police. But the reason I ask is that if the person works for the company, they may be very reticent to use this provision of the act, as it’s not clear how they are protected. Now, perhaps whistle-blower protection is stronger elsewhere.

Certainly, I’ve heard mixed reviews of that from people, in my experience. Who is the…? How do I phrase this? Would the in- formation of who makes the complaint, who approach- es the conservation service…? Would their information be shared with the proponent or with the company that they are making the complaint about, or is that a confi - dential process? Hon. M. Polak: It is a confi dential process. It is the same as…. In terms of the conservation offi cer service, they are sworn peace offi cers.

Th ey are, in fact, the pri- mary law enforcement agency on the ground in British Columbia for matters of the environment, of the land. It’s a confi dential matter, and the conservation offi cer service must handle those types of complaints the same way that a police offi cer would handle a complaint. S. Chandra Herbert: It’s very specifi c,

section 37, in that it discusses that the person “must include a statutory declaration or affi rmation” that includes “ …the name of each person alleged to have done something, or to have failed to do something, in contravention of this Act or the regulations, and (

d) containing a concise statement of the evidence supporting the allegations. ” Certainly, I could understand why you’ d need to know what the allegation was — a concise statement. However, I do know that in my time as an MLA but also just in speaking with law enforcement and others, it’s not always clear who exactly is responsible for the pollution, who exactly is responsible for breaking the law. Y ou may know. Y ou may have been told “Oh, it was Joe” who decided to not report properly or to break the law.

But you don’t know Joe’s full name, and maybe it’s a nickname. [1500] Maybe you just know that the evidence is there that the company is breaking the law, but you don’t know the name of each person alleged to have done something, or to have failed to do something, in contravention of this act. [M. Dalton in the chair.] Why is the minister, through this act, being so specifi c about what must be required? As far as I can see, an ap- plication for investigation….

If the person didn’t know the name of the person who broke the law but knew the law was being broken, they could not apply for an inves- tigation, in the way that this is worded. Hon. M. Polak: A few points. First of all, the point of this provision is to avoid vexatious complaints. We don’t want the chief conservation offi cer to spend all of his or her time dealing with vexatious complaints. Th e term “person” in sub (2)(

c) also means “company. ” If they were alleging that an off ence had occurred on the

British Columbia Debates5286 Thursday, November 6, 2014 part of a company, they wouldn’t need to know the name of the individual employee involved, although if they did, they could certainly put that in the application for the complaint or for the investigation. I should also point out that this process, as it’s laid out here, currently exists under the existing cap-and-trade act with regard to GHG reporting. A request for an in- vestigation has to be received in this manner. S.

Chandra Herbert: Well, it does help that the min- ister has explained that in this reading, the word “person” also means “corporation” or “business. ” I, of course, believe a person should be alive. Y es, while corporations may have been ruled by the law to be per- sons in the understanding of how the law applies, I fun- damentally disagree. I have real trouble thinking that a corporation is a person with the same rights as you and I, because corporations can live forever and you and I can- not, of course, unless we come up with some new science down the road or if you believe a diff erent spirituality.

I wonder why it’s not defi ned in the name of each per- son or corporation alleged to have done something, just for clarity, because most persons that I know would never think of a corporation as a person. Hon. M. Polak: Th e important thing here, though, is direction that is given through the statute to a judge who would rule in a case. If you follow through as we go forward, you will see the term “person” used over and over again. Now, it may off end our sense of personhood to be mentioned in the same terminology as some large multinational corpora- tion.

Nevertheless, under the law this would be inter- preted by a judge in the appropriate way. V . Huntington: In 37(2), I notice that the legislation is requiring a statutory declaration in this application for investigation, but I’ d like to remind the minister that much of this activity will be taking place in the north, if not the far north. Th ere are many communities, whether they be native communities or not, that just simply don’t have access to a notary. I think this is a substantive im- pediment for presenting or applying for an investigation in a reasonable manner.

I can see that you would want to avoid vexatious re- quests, but I think a formal application requiring the in- formation in (

a) to (

d) would be suffi cient. I really know, having lived in the north, that requiring a statutory dec- laration would just put a stop right there for many, many people. Hon. M. Polak: This provision would not require someone to fi nd a notary and have a notarized document.

It simply ensures, much in the same way as we discussed with respect to ordinary — I shouldn’t say ordinary — police offi cers that we’re all familiar with, if you wished to see charges laid or investigation occur with respect to something that had happened to you, you would, as we are familiar with the term, swear a complaint. [1505] It is a statutory declaration or affi rmation. It does not require that the person attend a notary or anything like that. It is the same process that you would undergo if you were swearing a complaint to a police offi cer. V .

Huntington: So it’s just basically the requirement of a signature above a declaration, an oath.

Section 37 approved. On

section 38. A. Weaver: Hon. Chair, welcome to the seat. We’ve enjoyed the previous Chair engaging in the many ques- tions we’ve had, and we look forward to similar enjoy- ment working with you. I have a couple of questions on

section 38. Th e fi rst one, a simple question, is…. In the defi nitions, “conservation offi cer” is defi ned under the Environmental Management Act. May I assume that “chief conservation offi cer” is also defi ned under the Environmental Management Act? Hon. M. Polak: Y es, that’s correct. A. Weaver: I’m trying to understand the relationship, if any, between the chief conservation offi cer, conserva- tion offi cers and inspectors. Is it possible for the chief conservation offi cer to be an inspector or for an inspector to be the chief conservation offi cer? Hon. M.

Polak: In the case of the kind of applica- tion we’re discussing here, the chief conservation offi cer would investigate as is appropriate and could, in that case, be the one gathering evidence and could ultimately rec- ommend charges to Crown. In the case of an inspector out in the fi eld — the chief conservation offi cer could be acting in the role of in- spector — who could come upon information in the course of that inspection that would….

In the case of an inspector who was not the chief conservation offi cer, if that inspector came upon information evidence that led them to believe that charges should be considered, then that information evidence would be taken to the chief conservation offi cer, who would be tasked with evaluat- ing that and considering whether or not to recommend charges to Crown. But the conservation offi cer could also be acting in the role of an inspector or vice versa. V . Huntington: On 38(

b) is there a threshold or are there criteria anticipated in the regulation that would stipulate how the chief conservation offi cer should con- sider whether he should undertake an investigation?

British Columbia DebatesThursday, November 6, 2014 5287 Here it says: “ …considers necessary to determine the facts…. ” Is there a threshold for that determination? Hon. M. Polak: Th ey are trained peace offi cers, so they operate in the same manner that a law enforcement offi - cer would in a local community. Th ey follow their train- ing, and they use their discretion.

Section 38 approved. On

section 39. A. Weaver: On

section 39(2), I was wondering if the minister might clarify — this could also apply to 38, but I left it for 39 — whether an individual who submits an application for investigation under

section 37 has any re- course to challenge a ruling or decision by the chief con- servation offi cer in the event that the individual disagrees with the offi cer’s decision to discontinue an investigation? [1510] Hon. M. Polak: My understanding is that in the case where they disagree with the decision of the offi cer, they could lodge a complaint similar to — if one were to dis- agree with the decision of a police offi cer and the results of their investigation. S. Chandra Herbert: Just to follow up on the question from my colleague from Oak Bay–Gordon Head.

Th ey could lay a complaint that the investigation was done poorly. Where would that complaint go to — the police complaints commission? How does that work? Hon. M. Polak: I don’t have that information with me, so I would have to seek confi rmation as to how a com- plaint process like that would proceed. What I can say, though, is that in these matters, wheth- er or not the process is under the Police Complaint Commissioner, the principle of what we’re going through in these sections is the same as what operates with respect to law enforcement offi cers broadly.

Th ey are expected to conduct themselves in accordance with their appropriate statutes, training, etc. It would be a very serious thing for them to act improperly, but the law enforcement aspect of it is at their discretion. S. Chandra Herbert: Y es, this could be asked under 38 or 39. Th e reason I ask it is I’ve heard from folks who don’t know who to go to sometimes and have asked that question. If there is a conservation offi cer who is, I don’t know, acting like a cowboy and not listening to the rules, who do they go to?

I would hope that the minister’s staff are able to get her an answer pretty quickly, because it is fundamental. If it’s just a question of, “Well, you can send a letter to your local MLA, ” that’s very diff erent from, “Y ou can send a letter to the police complaints commission, ” where a full investigation would take place. Currently I’m sitting in a separate role on the special committee to look at the independent investigations offi ce. Th at’s around very serious incidents.

Th ese, of course, may be very serious as well — just not police- involved shootings or deaths or those kinds of things, but still serious, around environmental crimes. Interjection. S. Chandra Herbert: Y es, not fi rearms, for sure, al- though we may, of course, be polluting by fi re into the atmosphere — a little diff erent, but an assault on the earth as opposed to an assault on a person. If it is possible to get that answer, I would really appre- ciate it.

I would have expected it would have been well known within the Ministry of Environment — who it goes to when there’s a complaint against the chief con- servation offi cer or the conservation offi cer’s staff and what the exact process is. Either they’re doing such a good job that we’ve never heard about it, or nobody knows about it because the process just really isn’t well known, and it’s not used well because of that. So if that is possible, I would appreciate it.

Conservation offi cers play a very important role in our communities, but I think that they, too, would want to ensure that the public had trust — that if there was mis- conduct from a colleague, the public would have an in- dependent place to go and that it wouldn’t simply be one conservation offi cer investigating another conservation offi cer’s conduct. Is that possible, hon. Minister? Hon. M.

Polak: In the interest of accuracy, we are con- tacting the appropriate department to ensure that we can provide the correct answer. [1515] While I take the member’s point that one would hope that these things are widely known, nevertheless — in de- fence of my staff — these are staff who specialize in issues around climate action, not around law enforcement on the land base or complaints against law enforcement of- fi cers. We will endeavour to get that information for you. S. Chandra Herbert: Y es, of course, full respect to the staff .

I know one of them is relatively new to government and has been thrown right into it right from the start and is doing a very able job, from what I can see, in being able to provide the minister with some very detailed an- swers on some very detailed parts of law. Of course, this is about the enforcement of that law and ensuring that it’s enforced fairly and that it’s seen to be enforced fair- ly and that complaints about conduct of those who are charged with investigating are actually seen to be done and are done well.

British Columbia Debates5288 Thursday, November 6, 2014 In terms of discontinuing an investigation, I under- stand that there is the provision here that, of course, if the investigation isn’t fi nding anything…. Maybe it’s particu- larly well hidden. Maybe nothing happened at all. And that does happen. Certainly, I’ve got a number of friends who are police offi cers and share those details with me — and those who are lawyers who look into these matters. I’m curious. What is the timeline, if any, to pro- vide those who’ve been alleged to have broken the law with a report saying: “Oh, actually, we investigated you.

And no, it turns out that you didn’t and that we weren’t able to find any proof to the allegation made against you”? I ask that question because there are, of course, in- stances, including in this own House, where people may fi nd that they are being investigated but had no know- ledge they were being investigated — which, of course, is important. Y ou don’t want people to always know that they’re being investigated, as they may change their be- haviour or hide what they were up to.

However, it is im- portant that they are told — before media or others may get hold of it — that they’re under investigation when they may not even know they were under investigation or that they’ve been cleared by an investigation. Just curious if the minister is able to share that infor- mation with me. Hon. M. Polak: It depends on the nature of the inves- tigation. In some circumstances the fact that an investi- gation exists is not disclosed because it could jeopardize that investigation or other matters. So it depends on the nature of the investigation.

Again, that is where we rely on the expertise of our law enforcement offi cers. S. Chandra Herbert: Is this also possible? Th e chief investigator may say, “I’m not going to continue the in- vestigation. I don’t have enough information. However, there was enough there that I’m going to create a cold case” — as they say on TV , where it sits and waits for some whistle-blower down the road. Or, I don’t know, as they do on TV , an envelope shows up which provides new proof years later. Or somebody in a deathbed conversion admits to what’s going on. All of a sudden the investiga- tion is anew.

Does this allow that to happen? Hon. M. Polak: First, I’ll deal with the previous ques- tion about the conservation offi cer service. Th ere is a public complaints process, and that information is on our ministry website. If, of course, the chief conserva- tion offi cer him or herself was implicated, then it would have to be a delegate that conducted the investigation into that matter, not the person themselves. Th ey’ d have to delegate someone else with the appropriate authority.

But it is a public complaints process, and the informa- tion is on our website. [1520] With respect to the question about time frame, I do think, though, at this stage it’s important for us to re- member what types of off ences we’re talking about, right? Th ey didn’t purchase enough off sets or units, they didn’t report their emissions, or they obstructed the investiga- tion or inspection, the duties of a conservation offi cer. It’s unlikely that we’re going to fi nd bodies in the attic aft er a number of years.

I just think it’s one of the realities of creating legal stat- utes that you also need to consider the nature of the of- fence you’re discussing here and the likelihood of certain circumstances arising. Y ou couldn’t possibly write down in law every single circumstance that could possibly apply. Y ou attempt to construct legislation that has the right balance of specifi - city with the fl exibility to respond in new circumstances that weren’t contemplated. But again, we have to remem- ber we’re really not talking about….

I mean, serious off ences in terms of disobeying the statutes but, neverthe- less, unlike, say, cold case investigations — for example.

Section 39 approved. On

section 40. A. Weaver: I was wondering if the minister might out- line the types of decisions that she foresees prescribing under subsection (1)(c). Hon. M. Polak: Under sub 40(1)(c), firstly, any of those items we’ve been discussing where the director has prescribed something. But in addition, this enables us in the future, or enables the director, to prescribe something else that we haven’t already listed in (

a) and (b). Sections 40 and 41 approved. On

section 42. S. Chandra Herbert: I appreciate that this

section re- fers to the Freedom of Information and Protection of Privacy Act, as it had been a question that was raised earlier. Of course, it was regarding the tech fund, but this act is quite wide-ranging. I’m wondering if the minister may describe what she feels this

section does in relation to protecting information. [1525] Hon. M. Polak: Here’s how this operates. Subsection 42(1) is the defi nition specifi c to this section, so sub (1), defi nitions. Sub (2) is what provides that all of these dif- ferent activities and information that we’ve been dis- cussing under this act are governed by the Freedom of Information and Protection of Privacy Act. Then sub (3) specifically exempts certain specified items from protection. Sub (3), even though, perhaps, the

British Columbia DebatesThursday, November 6, 2014 5289 ordinary

interpretation of the Freedom of Information and Protection of Privacy Act might aff ord protection of the information mentioned in sub (3) — and I guess (4) as well, if I’m reading it correctly — we’re saying here that specifi cally, we, through this act, are removing that protection. Th ese items must be disclosed. S. Chandra Herbert: That is a helpful description and certainly how I read it. I guess the question is: has this been vetted by the Privacy Commissioner? I’ll leave that there. Hon. M. Polak: In fact, provisions in this act were vet- ted, revetted and revetted again.

Th ere was a tremendous amount of work that was undertaken to line up with rec- ommendations from the commissioner. I could not say that she would 100 percent agree with every jot and tit- tle in the act, but I think we’ve got it pretty darn close to what she wanted to see. S. Chandra Herbert: Am I to understand that this section, then, was not in the original cap-and-trade act? Hon. M. Polak: It is similar to what was in the cap- and-trade act. I would say we have, to a certain extent, improved it, based on the experience that we have had with the cap-and-trade act. S.

Chandra Herbert: What is the experience that the minister refers to that led to these improvements? What are the improvements specifi cally? Hon. M. Polak: It would take some time to go through each and every item, but I think that I can answer suffi - ciently by saying that in some cases it’s a matter of word- ing that was no longer appropriate. For example, we won’t be using a compliance unit tracking system, so that didn’t need to be language that we used.

In other cases, it’s sim- ply providing that sub (3) would now have much great- er specifi city, in some cases, as to what exactly we were causing to be disclosed. [1530] S. Chandra Herbert: I appreciate the assistance. I’m curious. In the fi rst sub (1)(

b) it discusses that “protected information” means information that would reveal “commercial, fi nancial, labour relations, scientifi c or technical information of or about a third party. ” How would scientifi c or technical information diff er from, let’s say, the scientifi c readings needed to under- stand greenhouse gas emissions or to measure — poten- tially, where you can — methane release at a hydraulic fracturing site?

How is that determination made, or what would be scientifi c or technical versus what is allowed under sub (3) around “determinations of greenhouse gas emissions, ” “reporting operation, ” etc.? Hon. M. Polak: Th ey may be using a proprietary pro- cess, and the release of that information could be damag- ing to their business interests, for example. S. Chandra Herbert: Th at is for sure a possibility.

Of course, we would hope, as the minister has spoken of, that if you make an innovation and have proprietary in- formation that maybe allows you to reduce your green- house gas emissions, that information would be, in a sense, shared so that we can raise the bar — or, should I say, lower the amount of greenhouse gas emissions, rath- er than keeping it all proprietary. I guess that there’s a great debate — mostly in the Internet world but elsewhere as well — about Creative Commons versus restricting the right to see the infor- mation. Some say: “Let the information free” — open data and all of that.

What sort of attempts would the ministry make to help share the data, help encourage proponents, regardless of industry, to share the innovations and share that infor- mation with the public — or with competitors, in a sense — so that we can improve things rather than keep a really good thing to ourselves? Hon. M. Polak: Th is, though, is about information that they are not required to disclose. For example, we’re not talking about data that is required in reporting or things of that nature.

It would be, in the case that the “commer- cial, fi nancial, labour relations, scientifi c or technical in- formation of or about a third party. ” If the information would reveal knowledge about something that the company is not required to disclose, you can’t then not protect the disclosure of information that would otherwise reveal that, if they’re entitled to keep it quiet. Obviously, it would be wonderful if we had sort of an open soft ware kind of concept for technology all over the world and everything was free.

In reality, though, companies spend a considerable amount of money de- veloping new technologies and developing new equip- ment and new methods. I know, myself, that if I did manage to invent a better mousetrap, I’ d certainly want to be the one with the patent and getting the money for it. Th e same is likely true with respect to new technol- ogy that might be marketable to industry. I’m quite confi dent the companies would want to retain that pat- ent. Y ou then get into the question of what gets shared and what doesn’t.

Th at, more broadly, is covered by the Freedom of Information and Protection of Privacy Act but also, of course, there are rules around patent and things like that. S. Chandra Herbert: Th e reason that I raise it, of course…. I’ve heard from many, whether it be the geothermal folks who are keen to fi nd out what the temperature readings

British Columbia Debates5290 Thursday, November 6, 2014 are if somebody is drilling to see whether a gas play may play out…. Th ey’re very interested. We can collect that data. [1535] I hear that from biologists who are interested that when you do a site survey…. Maybe you do an assess- ment of wildlife habits in a certain area. Th ey would love for that information to be able to be shared, col- lected. While we may not have the budget within the Ministry of Environment to do as many of those studies as we would like, many corporations may have already done them for their own projects.

Th ey’ve asked me to fi nd ways to raise the concern that that information may be there but nobody can see it. While we may have the knowledge, it’s not being as widely shared, and we’re all collectively poorer for it. I notice that in this “Confi dentiality” section, the min- istry has made a provision that “protected information” does not include “information in respect of which the third party has consented to its disclosure. ” I guess the question — maybe this is a wider policy question for the minister to consider, and it may be not appropriate for here, but I’ll try it anyway — would be this.

Is the minister working within her ministry to work with proponents, to work with those who are coming forward with proposals — who potentially, under this act, have good data, good information, which may not be commercially necessary to protect but is not public- ly available — to make the request: “Can you provide a data set?

Can you provide the reports that have led you to your decisions, where they will not harm your com- pany’s prosperity?” Just by signing a consent form or signing something like that to ensure that that data is available to the wider public, we can ensure that the hard work they did to get it may not just sit on a shelf collecting dust but may help us all get richer through having access to that knowledge. Hon. M. Polak: W e need to be clear here about the section.

Th e member describes well, I think, the balance between the advancement of humankind and our tech- nology and knowledge against the anvil of confi dential- ity — protected information, what should be protected, what should be disclosed. Th at is the purpose of sub (2). Th e instrument used to determine that balance is the Freedom of Information and Protection of Privacy Act. It’s not for us in this act or even in our ministry to try and thread that needle. Th at has been considered by government, and it is given life through the Freedom of Information and Protection of Privacy Act.

Th ere are, I’m sure the member knows, all sorts of organizations — be they trade organizations, environmental organiza- tions — who do make eff orts to work together, and we are involved as a ministry in many of those. But that bal- ance that the member describes is what the Freedom of Information and Protection of Privacy Act is about. Th at is the reason why sub (2) places this under the Freedom of Information and Protection of Privacy Act. A. Weaver: In subsection (1), the defi nition of “pro- tected information” is given there.

I’m wondering if the minister might provide some clarity as to if a process exists to allow for operations to be challenged on the basis of what they believe to constitute protected infor- mation. How does the ministry know, have access to or have an ability to challenge what a company may deem to be protected information? Hon. M. Polak: If there’s a dispute, then that would be adjudicated based on the provisions of the Freedom of Information and Protection of Privacy Act. A.

Weaver: Presumably, that answer may also apply to this next, subsequent question — which is with respect to whether or not this bill limits the ability of an individual to report infractions or contraventions of the act. [1540] That is, are there limitations to potential whistle- blowers through

interpretations of what is deemed to be protected information? Hon. M. Polak: This wouldn’t change any of the existing circumstance. A. Weaver: I’m not aware of what those existing cir- cumstances might be. Perhaps the minister might be able to expand that a little more for me. Hon. M. Polak: I think I’m going to answer the mem- ber’s question, if I’ve understood the question correctly. Information that was collected in the course of an in- vestigation, or information that we were in possession of, would not be protected when you get to sub (4).

Th at in- formation, even though it may have been protected pre- viously, would no longer be protected if it’s determined that an off ence has been committed and if that informa- tion is evidence of that off ence having been committed. A. Weaver: Where I’m getting with this…. My concern is that confi dentiality under this legislation is trumping the ability of a whistle-blower to actually come forward with potential unlawful conduct conducted by an oper- ator or company. An example.

It seems to me, from what the minister just said, that it may be that if this so-called protected information is brought out, brought to the government, and then there has been deemed to be an off ence, that that protected information is in fact no longer protected. However, if there is not deemed to be an off ence, what’s protecting the whistle-blower in examples where there may be…? It might be very, very close to being an off ence, and in fact, it could be…. Essentially, what I’m worried

British Columbia DebatesThursday, November 6, 2014 5291 about is that we’re creating barriers to whistle-blowers bringing forward information about unlawful behav- iour through the inability to protect them from doing so. I worry that these defi nitions and this particular sec- tion actually trump whistle-blowers in favour of corpor- ation-protected information. Hon. M. Polak: Th e distinction here, though, is that the prohibition is not against disclosing information to an appropriate investigator. Y ou’re not prohibited from doing that. Y ou are prohibited from publishing it.

Y ou couldn’t put it on the front page of the Vancouver Sun, but you could certainly go to the chief conservation of- fi cer or other law enforcement, and you could disclose that information to them. Th at’s a confi dential process, and you would not be in contravention of any rules of disclosure or protection of information. A. Weaver: I’m trying to get this very clear. I appreci- ate the answer.

If somebody brings protected information, under the defi nitions here, to the chief conservation of- fi cer and that chief conservation offi cer deems that that information actually is protected and there is no off ence, is that person still protected under the court of law from potentially revealing whistle-blower information? It is a confi dential process, but does the company in- volved…? Suppose questions start to get raised. Is there pro- tection for that whistle-blower here, through this legislation? Hon. M.

Polak: If you look at sub (4), it wouldn’t be considered a disclosure under the Freedom of Information and Protection of Privacy Act if it was in the conducting of an investigation, an inspection — things like that. [1545] I think the short answer to the member’s question is that the fact that the person disclosed that information to an appropriate offi cer would not put the individual on the wrong side of the law or allow action on the part of the company against the individual for disclosing it ap- propriately to an investigative offi cer. A. Weaver: I will defer to the member. Oh, I was go- ing to go….

I wondered if my friend from Delta South was going to follow up on precisely this point. I would have deferred to her. I have one fi nal question on this section, which is under

section 3. I’m wondering why the prohibition does not also apply to health and safety information that may in fact be in the best interest of the public to be disclosed? Hon. M. Polak: Th at just isn’t governed by this act. Th ere are provisions in other statutes. V . Huntington: Just to clarify something for me with regard to the comments in section (3).

When it says the prohibition doesn’t “apply to disclosure of the following information…. ” Th erefore, to me, that would mean these are generally pieces of information that are public — the determination “of greenhou se gas emissions, or emis- sions of a particular greenhouse gas, ” “a reporting oper- ation or regulated operation, ” etc. Where is all of this information to be recorded? Is it all going to be in the registry and available at any time to the public? Is it going to be controlled and monitored and posted by the Oil and Gas Commission?

Where, in fact, is this information that everybody will be interested in going to be available? Hon. M. Polak: T o be clear , that aspect of things doesn’t have anything to do with this section. Th is only determines where that line is drawn — the provisions requiring that this information be protected. Th e ordin- ary provisions of FOIPPA apply, except with respect to this information. If you look down the list of the various specifi c instances where the protection will not apply…. Take, for example, (3)(d).

Well, there’s all sorts of information under this act or, if you want to look at here, the Ministry of Environment Act. Th at’s extremely broad, so it covers all sorts of infor- mation that could be posted in all sorts of diff erent places. We do have provisions in the act that we’ve been through, some of them around reporting and require- ments and things like that, but in this particular

section it’s simply dealing with the exceptions in terms of infor- mation that would otherwise be protected. If we didn’t include that sub (2), where we place this legislation under the Freedom of Information and Protection of Privacy Act, then you would inadvertently create a protection over these materials. [1550] V . Huntington: I appreciate the minister’s reply, and I understand that part of it. Perhaps my question is too broad for this discussion. Somewhere along the way I’ve missed where information that will be of interest to the public, like emissions data, control data, reporting data….

If the minister is able or willing to answer this broader question, where does she anticipate that will be stored and accessible to the public? Hon. M. Polak: Th e provisions in this act, in terms of reporting and the reporting of data, have already been in place for a number of years. Even if you go to Google and type in “B.C. GHG reporting 2013, ” you’ll get all the 2013 numbers for all the industrial sectors. So all of that is already currently publicly reported, and it’s done so annually, specifi cally when we have completed a review of the reports for their accuracy and completeness.

Th en those reports are made public.

British Columbia Debates5292 Thursday, November 6, 2014

Section 42 approved. On

section 43. S. Chandra Herbert: Th is

section is on information- sharing agreements. I’ve been learning about the diff erent jurisdictions and the possibilities that could exist down the road, if we team up with other governments, other jurisdictions, for sharing this sort of information. I won- der if the minister might share some information about what she thinks this

section allows the government to do and why it’s been laid out in this form. Hon. M. Polak: What this does is allow us to put into an agreement provisions that would govern the manage- ment of information that would then be shared. It could be diff erent provisions based on diff erent types of infor- mation and data that were shared. For example, if we wish to have an agreement with a registry, one would want to put in place, into that agree- ment, the kinds of requirements that we currently have on our statutes with respect to freedom of information, protection of privacy — things of that nature.

But it would vary depending on the nature of the information being shared and the nature of the cooperation between the parties. S. Chandra Herbert: Basically, is this similar to what might exist with health data or other forms of data that the government might collect? Hon. M. Polak: I don’t know if it would be similar to what takes place in terms of health. I apologize for that. But what I can say is that this simply is to ensure that if we are going to share information, we have obligations with respect to information that we possess.

Th erefore, we would have to ensure that any agreement enabled us to ensure that those obligations were still met, even with- in the bounds of that agreement. A. Weaver: I’m wondering. I don’t quite understand the rationale or the purpose of specifying “data-matching or other agreement” in this section. [1555] Could the minister expand upon that, what it means by data matching? I’m not quite sure. Hon. M. Polak: Data matching — commonly used in verifi cation processes.

For example, if another jurisdiction had verifi ed an off set, we would want to be able to com- pare the data and, as the term suggests, match that data. A. Weaver: Th e minister will understand my confu- sion, because data matching, when such words are issued in a scientifi c realm, would make one rather suspicious — what you mean by data matching. It sounds like data fudging or data creation. So I just thank you for the clari- fi cation there. I’m wondering, fi nally, on this

section — I do have a quick follow-up in between sections, if I might — if the minister can think of an example or a specifi c situation in which it would be appropriate to share data in the registry with a foreign jurisdiction but not someone in the B.C. public. My worry here and my concern and my question is: to what extent is our freedom-of-information legisla- tion following through with data that is shared to foreign jurisdictions and back? Hon. M. Polak: A good example would be that one could contemplate something like that perhaps under WCI.

It could be a future national trading system or an international trading system. Again, the agreement that one would enter into…. Th is isn’t a permission to share data. It’s the opposite. It’s a restriction saying…. I shouldn’t say that it is a restriction. It enables the place- ment of a restriction in the form of an agreement on how that data or that information could then be handled by the other jurisdiction. I think that probably covers it. We’ll see if that’s suffi - cient for the member.

Section 43 approved. A. Weaver: I’m hoping to take this opportunity now, before entering

section 44, to introduce, on notice, a mo- tion. We’ll see if we get to it today — perhaps on Monday. Give the government and opposition and my colleague here, the independent, time to refl ect upon it. Th is proposed amendment will be with respect to the title of the legislation and changing the word “control” to “increase” to better refl ect the content within this par- ticular legislation. Th rough the Clerk to you, I put this amendment on notice. Interjection. A. Weaver: I’m just putting it on notice now so that people have time to refl ect…. Th e Chair: Th ank you, Member. On

section 44. S. Chandra Herbert: This

section relates to agree- ments. “With the prior approval of the Lieutenant Governor in Council, the minister may enter into agree- ments” with another province, territory, foreign juris- diction “or with an agent of any of them, respecting…. ” Th e subsection that I’m curious about is “inspection and enforcement. ” It sounds very broad that the government of B.C. could, through an order-in-council, decide that inspection and

British Columbia DebatesThursday, November 6, 2014 5293 enforcement, an agreement on that, could be made with a foreign jurisdiction. What does that mean? Is it that we could potentially, under this section, say: “Let’s allow the Dallas police to inspect, enforce the British Columbia law”? Or we’ll have another country come and inspect and enforce our laws. It just sounds very broad. I’m curi- ous. Am I reading it too broadly, or is it that open-ended? [1600] Hon. M. Polak: Not that I would want to cast asper- sions on the climate action of the Dallas police depart- ment. I’m sure they’re very green. Nevertheless, one must remember that sub (

a) speci- fi es that it must be “for the purposes of this Act. ” For example, if we did enter into some kind of trading rela- tionship or something through WCI, just as we would want to be able to verify and inspect on occasion issues of concern around reporting or all those kinds of matters we’ve been discussing rather than allow that to be willy- nilly, we would enter into an agreement before any of this took place. Y ou’ d actually have to execute an agreement that would govern how all of that is conducted. S. Chandra Herbert: Y es, that does help me under- stand this better.

Of course, I would hope that before we entered into such agreements with foreign jurisdictions, the Canadian public would have a sense of what we might be entering into, because some jurisdictions’ rules of law are ones that we can really understand and have some faith in — others maybe not so much. What sort of consultation, what sort of public notice would be given if we entered into an agreement with a for- eign entity to potentially come into British Columbia and inspect, enforce our laws?

Of course, enforcement of the laws, even for the purpose of this act, could be quite in- tense, involving millions of dollars potentially. Enforcing the laws could involve entering somebody’s premises, their home, their offi ce, their business without a warrant. Given that this is setting up the possibility that a for- eign jurisdiction could be involved, for the purposes of this act, in inspecting or enforcing the laws in this act, I would think that the people of this province would want some sense of security that an agreement would not be reached without their knowledge. Hon. M.

Polak: Th is doesn’t allow for another jurisdic- tion to come and enforce their laws here in Canada or for us to go and enforce our laws on someone else. For the purposes of this act…. Again, let’s remember what it is that we’re discussing here. It’s all about the reporting of off sets and compliance units and the verifi cation of them. If you were going to…. Th is provision is intended to be protective, is intend- ed to allow us to be able to protect ourselves. I t would enable us to enter into an agreement in order to protect against the very things that the member is concerned about.

So we could set out the provisions in that agree- ment that then protect us from that. It would be some- thing that, as a minister…. With respect to the approval of the LGIC, I couldn’t just go out as an individual min- ister and execute an agreement on my own. It would have to be government approving that in the form of the Lieutenant-Governor-in-Council. S.

Chandra Herbert: I’m not so much concerned that a foreign government would enforce their laws within Canada. [1605] I think the concern that people might have would be a foreign government enforcing our own laws within Canada, as opposed to our own police forces, our own conservation service, etc.

Given that diff erent police cultures, diff erent offi cer cultures, inspector cultures exist in diff erent countries, one would hope that if you were going to have the law enforced, it would be done by somebody from your own country — somebody who represents your own coun- try; I should be more specifi c — as opposed to from a foreign government. I guess the question I have is: what protections…? Maybe not what protections, because the minister has said the protection is that in this

section the minister and the government through an order-in-council would have to agree to such a thing, would have to agree and put provisions on it. But just to be clear, there’s nowhere in this law that would restrict or stop a foreign govern- ment from enforcing our laws if a government decided to sign such an agreement through an order-in-council. Hon. M. Polak: Th ere doesn’t need to be a prohibi- tion in this act, because it is prohibited in any case. Th is act doesn’t enable that, just as there are many things in British Columbia that right now are against the law but they’re not in every act, right?

Th ey’re in a specifi c act. Here this does not enable something any diff erent. It doesn’t suddenly allow foreign governments to come and be able to apply their laws, enforce them and send their Dallas police or what have you. Th is simply allows us to enter into agreements. Maybe I should say it this way. Imagine a situation gov- erned by provisions that stipulate how one can operate together with this information across these jurisdictions. Th e agreement, then, would set that out, would create some rules where none currently exist.

But where there are rules that currently exist that provide for Canada to enforce its own laws on its land, etc., those still stand, and this wouldn’t remove those. It couldn’t. It wouldn’t have the power to remove those unless specifi cally au- thorized in the act. S. Chandra Herbert: Th en, what I’m hearing is that through other laws, the minister is suggesting that a for-

British Columbia Debates5294 Thursday, November 6, 2014 eign government, even if agreed to in this by government — yes, you can come and inspect and enforce…. I’m trying to understand how to square the circle here, where an- other law says no, those foreign governments can’t come into our country and enforce our laws or do an inspec- tion through a search and seizure or something like that.

Why would it be written in such a way to suggest that “for the purposes of this Act, with Canada, another prov- ince, a territory or a foreign jurisdiction, or with an agent of any of them, ” respecting “inspection and enforcement, ” they could enter into an agreement respecting inspection and enforcement? What would be the kind of thing the minister would think of for enforcement that the govern- ment could enter into an agreement with a foreign gov- ernment to enforce? Hon. M. Polak: Remember, the provision here doesn’t say “enabling” enforcement. It says “respecting” inspec- tion enforcement.

So it could be matters that are related to inspection and enforcement. Let me try to alleviate the member’s concerns in this way. I would love to think that I as a minister or my cab- inet had these huge, incredible powers, but we have with- in our government at the provincial level a certain range of areas of jurisdiction. I mean, we could all unanimously agree in this House that we want to change a law that is federal, and we could go through all the motions and pass legislation, and it would have no eff ect. Th e same is true of an agreement executed through an order-in-council.

Th e cabinet doesn’t get to change laws, make decisions that are otherwise illegal, prohibited or unconstitutional. [1610] Because there are already existing prohibitions, we don’t get to make an agreement that would then trump those existing laws. Nevertheless, the important terminology here, as you enter into sub (

a) before you get to (ii), is to enter into that agreement respecting these things — and only these things, by the way. We haven’t specifi ed any- thing else. It doesn’t mean an agreement that would then enable those foreign jurisdictions to inspect and enforce. S. Chandra Herbert: Y es, that does help me under- stand this better.

So rather than suggesting that they may enter into agreements which would allow them to inspect and enforce, what I’m hearing the minister say is that it’s entering into agreements which would allow them to look at how the British Columbia conservation service, for example, might have inspected or might have enforced the law. Interjection. S. Chandra Herbert: Th ank you. Th at’s a simpler way for me to understand it: that they can look at the process but not actually do that themselves. A. Weaver: I have a couple of questions on this sec- tion as well. I’ll start with reference to subsection (a)(iii).

I’m wondering if agreements under this subsection could potentially include allowing B.C. companies to claim off - sets in jurisdictions outside of British Columbia. Hon. M. Polak: No, it could not. A. Weaver: Sorry, I didn’t hear the answer. Th e Chair: No, it could not. A. Weaver: Th ank you. I should have put my earpiece in, hon. Chair. Where, specifi cally, in this act does it explicitly preclude an agreement being signed that could allow a B.C. com- pany to claim an off set in a jurisdiction outside of B.C.? Hon. M.

Polak: Th e principle is that we can’t do in- directly through an agreement what we can’t do direct- ly through the act. Of course, as the member, I’m sure, recalls, as we’ve gone through this act, the provisions outline how off sets are verifi ed. We’ve talked about the standards that are used, etc. So I couldn’t subvert all the rest of that lovely work in the statute simply by entering into agreement that says I’m not going to do all that stuff that we just passed in the statute. So you can’t do indirect- ly what you’re not allowed to do directly. A. Weaver: A fi nal question.

I think my colleague was wording what I’m trying to ask here in a slightly diff er- ent way. I’m wondering if subsection (a)(ii) grants for- eign jurisdictions or agents the power of inspection and enforcement within B.C., to have their own inspectors actually on our territory here in British Columbia act- ing on their behalf. Hon. M. Polak: No, it would not.

Section 44 approved. On

section 45. V . Huntington: Th e defi nition in the act for operator “ …means a person considered under the regulations to be the operator of the industrial operation. ” But for purpos- es of

section 45, I’ d like to understand more fully what the term “operator” means to the province. Is it the board? Is it the owner of the company? Is it the general manager? Is it the operations manager? Is it the CEO? I wonder who we are calling here “jointly and separately responsible for meeting that industrial operation’s obliga- tions…. ” Could the minister be somewhat more specifi c? Hon. M. Polak: Th e regulations exist currently under the existing act. We’ d intend to port those over so the

British Columbia DebatesThursday, November 6, 2014 5295 defi nition refers to those regulations for a more fulsome description. [1615] V . Huntington: I wonder if the minister could tell me, for my own information, then, what those regulations refer to as the operator. Who is the operator? Hon. M. Polak: Here’s how that reads in the current regulation. We would intend to move this over into the new one. “(

a) in the case of a single operator of a reporting operation, (

i) if the operator of the reporting operation is an individual, the operator, (ii) if the operator of the reporting operation is a corpora- tion, (

A) a senior offi cer of the corporation, or (

B) the individual with primary responsibility for the operations and management of the reporting operation, or (iii) if the operator of the reporting operation is not an individual or a corporation, the individual with primary responsibility for the operations and management of the reporting operation, and “(

b) in the case of multiple operators, (

i) an individual who has been authorized in writing by all the operators to act as the oper- ation representative, or (ii) if subparagraph (i)” — the one I just read — “does not apply, an individual who has been authorized in writing to act as the operation representative by the operator who manages the reporting operation. ” With respect to the member’s question about specifi c individuals, the determination wouldn’t be made based on their title. Th e company can call them whatever they like. It’s based on their activities, their role. And I would ask, Mr. Chair…. I’ll let the member ask a supplemental question.

I was just looking for a time to move a short recess. V . Huntington: It’s quite brief. Th e operator is, specifi cally, jointly and separately re- sponsible for meeting the industrial operations obliga- tions. Does that responsibility include liability? Hon. M. Polak: Y es, it does. And if there aren’t any further questions right now burning in their minds, I wonder if we might move a short recess.

Section 45 approved. Th e Chair: Recess for fi ve minutes. Th e committee recessed at 4:18 p.m. to 4:27 p.m. [M. Dalton in the chair.] Th e Chair: Shall

section 46 pass? Some Hon. Members: Aye. Th e Chair: Th e member for Vancouver–West End. On

section 46. S. Chandra Herbert: Th ank you, Mr. Chair. I appre- ciate all the ayes. People were keen to get this passed, but I know they’ll give me some time to ask a few more questions. I think it’s important to ask why the government has decided to give itself the power under “General regulation-making powers, ” in 46(3)(c), to “defining words or expressions used but not defi ned in this Act. ” I ask that question because, of course, under that power, greenhouse gases, emission s….

Well, I guess they’re in the defi nitions, but other words that are not in the defi n- itions could be changed to mean something completely diff erent from what they mean today. I would like to know why the government feels it needs to give itself the power to defi ne words or expres- sions in the act at this point, which could allow them to change words from one meaning to another to another to another down the road, depending on the whim of government. Hon. M. Polak: As I’m sure the member will re- call from our lengthy discussion of the new Water Sustainability Act….

Th at had been in place for well over 100 years. All you have to do is take a look at that act to see that over time it was necessary to alter defi nitions as words changed use, as diff erent legal precedent was set. It’s not uncommon at all; in fact, I think it’s pretty stan- dard in most legislation. [1630] I want to say at the outset, though, of discussing this

section and some of the sections to come that there’s an important thing to understand that may help, I hope, to shorten our discussion on this section. Th at is that you will no doubt have noticed that very oft en, when inquir- ing about regulations, my response is that, in fact, those regulations already exist and we intend to bring them over into the new act. While for us as reasonable human beings, we look at the binder that contains the existing act, we see the regulations. Th ere they are. Th ey exist. In terms of this statute, once those bills are repealed, the regulations no longer exist.

So even though staff have copies and will dutifully take those and draft them as regulations for this bill and very many of them won’t change one word; nevertheless, for the purposes of this bill, they are referred to as mak- ing regulations. Th ey’re making regulations even though those regulations have existed for many years. Important to note that a large number — I would venture to say probably the majority — of regulations mentioned here and that we are unable to make are regu- lations that currently exist under the other acts.

We need to enable our ability to make those regulations once the other acts are repealed. S. Chandra Herbert: I appreciate that. Of course, the minister will have to forgive the offi cial opposition for

British Columbia Debates5296 Thursday, November 6, 2014 sometimes being suspicious of government’s ability to change what words or expressions mean. It’s a power that…. Interjections. S. Chandra Herbert: The independents are agree- ing that that is a concern when one is given the power to change what a word means, given that governments have done that through, mostly, in this place, the people in the basement but in other worlds through profession- al marketing and through pro

Document details

Collection	British Columbia — Debates (Hansard)
Citation	20141106pm-Hansard-v17n7
Type	hansard
Volume / chapter	20141106pm Hansard v17n7
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	523aec8ef17a4ca8ca99e235a10d185e83424fe6

Source file is stored in the law ingest library (pdf).