Hansard Blues

Committee of the Whole –

Section A

Draft Report of Debates

The Honourable Raj Chouhan, Speaker

4th Session, 42nd Parliament

Tuesday, October

31, 2023

Morning Sitting

Draft Transcript — Terms of Use

PROCEEDINGS IN THE

DOUGLAS FIR ROOM

Committee of the Whole House

BILL 29 —ENVIRONMENTAL MANAGEMENT

AMENDMENT ACT, 2023

(continued)

The House in Committee of the Whole (Section

A) on Bill 29; H. Yao in the chair.

The committee met at 11:03 a.m.

On clause 3 (continued) .

The Chair: Good morning. I call Committee of the Whole to order on Bill 29, the Environmental

Management Amendment Act.

Hon. G. Heyman: I will be tabling an amendment in my name to

section 3, and I will provide a copy.

The Chair: I shall call a recess for the committee.

The committee recessed from 11:03 a.m. to 11:18 a.m.

[H. Yao in the chair.]

The Chair: I call the Committee of the Whole on Bill 29, Environmental Management Amendment Act,

back to order.

Members, we have an amendment on clause 3.

Hon. G. Heyman: When we last were in Committee of the Whole on this bill, the member for Kelowna-Mission

raised some questions around an accountable person for costs if there is a default

on costs. We had a discussion about whether that could include employees of the owner

or operator, who can be a responsible person for other purposes. My response was that

we would address that by regulation.

The intention of Bill 29 has always been to focus on facility owners or persons with

legal or beneficial interests in the profits resulting from activities, not on employees

who are simply carrying out their duties. But I take the member's point that it was

not clear in the legislation. For people to wait for regulatory clarity was not helpful

and could cause concern. I thought about it. We discussed it internally and decided

that we agree with the member's point. I want to thank the member for making the point,

which leads us to the amendment to clause 3, which I will now clarify.

[11:20 a.m.]

In clause 3, in

section 91.82, we add these words. "The following are not responsible

persons: the government; an employee of a responsible person, if the employee has

no legal or beneficial interest in the profits resulting from activities taking place

at the facility; and a person excluded by regulation."

Then in 91.87(1), it says: "In this section, 'accountable person', in relation to

an abandoned facility, means all of the following persons, unless excluded by regulation."

That is the amendment, which I move.

[ CLAUSE 3, in the proposed sections 91.8 and 91.87, by deleting the text shown as struck

out and adding the underlined text as shown:

Definitions

91.8

(1) In this Division:

"abandoned facility" means a specified facility determined under

section 91.86 [abandoned facilities – government authority to decommission and close] to be an abandoned facility;

"decommissioning and closure plan" means a plan that is prepared and submitted under

section 91.82 [decommissioning and closure plans] ;

"owner" , in relation to a specified facility, means

(

a) a person who is in possession, has the right of control, or occupies or controls

the use of the facility, or

(

b) a person who has an estate or interest, legal or equitable, in the facility,

but does not include a person excluded by regulation;

"responsible person" , in relation to a specified facility, means, subject to subsection (2) ,

(

a) an owner of the facility, or

(

b) a person who is in control of or responsible for any operation located at the

facility ,

but does not include a person excluded by regulation;

"specified facility" means a facility used for a prescribed industrial or commercial purpose or activity.

(2) The following are not responsible persons:

(

a) the government;

(

b) an employee of a responsible person if the employee has no legal or beneficial

interest in the profits resulting from activities taking place at the facility;

(

c) and a person excluded by regulation.

Cost recovery if government carries out decommissioning and closure

91.87

(1) In this section, "accountable , in relation to an abandoned facility, means any all of the following persons unless excluded by regulation :

(

a) an owner of the facility;

(

b) a person who was a responsible person in relation to the facility immediately

before operations ceased at the facility.

(2) Subject to the regulations, if, in relation to an abandoned facility, the total

amount of the costs incurred by the government under

section 91.86 [abandoned facilities – government authority to decommission and close] exceeds the amount of security, if any, given under

section 91.84 [security in relation to decommissioning and closure] and held by the government, the amount of the excess is a debt due to the government

by an accountable person.

(3) The costs referred to in subsection (2) include all of the government's costs

in relation to the decommissioning and closure, including, without limitation,

(

a) for any of the following:

(

i) the use of government employees or contractors in the decommissioning and closure,

including

(

A) hourly rates, and

(

B) expenses, including food, accommodation and mileage;

(ii) the use of government vehicles, including mileage;

(iii) the use of consulting and professional services;

(iv) the use, maintenance and repair of government equipment;

(

v) private goods and services contracted, hired, rented or purchased;

(vi) research and analytical services related to the decommissioning and closure,

and

(

b) a prescribed percentage of those costs the Lieutenant Governor in Council considers

is sufficient to meet the government's administrative costs.

(4) Each accountable person in relation to the abandoned facility is jointly and separately

liable for the debt referred to in subsection (2).

(5) For the purpose of recovering all or part of the debt referred to in subsection

(2), a director may file a certificate with a court that has jurisdiction, and, upon

filing, the certificate has the same force and effect, and all proceedings may be

taken on it, as if it were a judgment of the court with which it is filed against

the person named, and in the amount set out, in that certificate.

(6) A certificate under subsection (5) may be in the prescribed form, must be signed

by a director and must contain

(

a) the name of the accountable person to whom the certificate relates,

(

b) the address or location of the abandoned facility, and

(

c) the amount of the debt to be recovered from the accountable person.

(7) A director may register a lien at the land title office against an abandoned facility

for all or a portion of the debt referred to in subsection (2).

(8) A director may register a lien against the personal property of an accountable

person for all or a portion of the debt referred to in subsection (2).

(9) On registration of a lien against the personal property of an accountable person

under subsection (8), a lien is created on the present and after acquired personal

property in which the person has a legal or equitable interest.]

On the amendment.

The Chair: I have reviewed the amendment from the minister. It is in order.

I invite any member who would like to speak to the amendment to have the minister

at this time.

On the amendment.

R. Merrifield: I just want to offer my gratitude to the minister for allowing the process and the

rigour of this place, in this House, to give us the best legislation possible. I appreciate

that the minister heard, both in the debate that was going on in this committee stage

as well as in reflection after the fact, some of the concerns that, left to regulation,

could really leave an ambiguity and a vagueness and, if not refined in regulation

appropriately, could result in unintended consequences.

I truly believe that the intention, as stated by the minister as we were going through

these sections, was as stated. Having said that, I deeply appreciate that he heard

and reflected and was willing to bring forward these amendments.

At first glance…. I apologize. I'm just getting it right now. I am looking at it.

It does seem to resolve the issue that we were debating last week.

I just wanted to, again, extend my gratitude. There's a sense of just being pleased

that democracy won on this one. So thanks.

Amendment approved.

On clause 3 as amended.

R. Merrifield: Carrying back over here. I noted that in the amendment, we have crossed out the "person

excluded by regulation" and added it back into subsection (2).

I wanted to clarify or confirm that the minister's intention on that was the same

as previously canvassed. It was that a person would be…. I'd asked for an example

in a previous discussion. The government would be a person that would be excluded.

Is there anyone outside of that that I should be aware of, or does that clause not

change any of the intention?

[11:25 a.m.]

Hon. G. Heyman: Thank you to the member for the question.

The amendment to the legislation, in clause 3, now very specifically excludes the

government and excludes an employee with no — sorry, I'd better make sure I've got

the language exactly right — legal or beneficial interest. I can't think of anyone

else or any other entity, at the moment, that might be excluded by regulation.

It is a standard piece of language that's put in legislation to address something

that may come up that is legitimate and, therefore, to be able to do it without requiring

a return to the Legislature.

R. Merrifield: Under the definition of a "specified facility"…. This seems to be left somewhat to

regulation. In the preliminary briefing with staff, we had canvassed this a little

bit, and it was indicated that it could possibly apply to the forestry sector.

Could the minister provide some direction as to what the "prescribed industrial or

commercial purpose or activity" will or won't be and which will or won't be included

in future regulations?

Hon. G. Heyman: The Environmental Management Act — this is a set of amendments to the act — prohibits

the discharge of pollution to the environment unless an industrial facility prescribed

under the Waste Discharge Regulation has

an act of authorization. Therefore, the projects

that would be in scope, specified facilities, would be those listed in the Waste Discharge

Regulation, recognizing that mining and oil and gas operations are already regulated

under the Mines Act and the B.C. Energy Regulator under the Energy Resource Activities

Act.

It's not a completely exhaustive list. Some of the industries that might be covered

would be smelting, chemical manufacturing, commercial waste management, some mining

activities, petroleum refining, and pulp and paper mills.

R. Merrifield: Under 91.81(1), it says a director may order a responsible person to provide to the

director information.

Could the minister describe in what instances a director would not order a person

to provide the information?

[11:30 a.m.]

Hon. G. Heyman: First of all, I think this is fairly standard legal language in bills. It's permissive

without being absolutely mandatory. An example of where there might not be an order

made would be for a low-risk industry where it just was not considered necessary.

An example would be agriculture.

R. Merrifield: In 91.81(2), it states that an order "must be served on the responsible person." Does

this mean that a single individual or entity will be designated as the responsible

person regardless of ownership structures, or given that there are potential financial

implications, could the minister explain why it is at the person's own expense as

opposed to the business's?

Hon. G. Heyman: I think the amendment that we just voted on would cover the member's concern in this

regard, where it says that a responsible person is not an employee of a responsible

person if the employee has no legal or beneficial interest in the profits resulting

from the activities taking place at the facility.

R. Merrifield: Thanks, Minister.

Could the minister, then, just describe for me what the processes are or how the beneficial

interest in the profits would be defined or allocated?

Hon. G. Heyman: I think we will actually probably address that in an amendment to clause 4, but the

regulation-making…. Maybe we should leave it till then, but I will simply repeat that

regulation-making power doesn't give executive council the ability to contravene clearly

stated intent in the legislation. The clear intent in the legislation here is to exclude

people with no legal or beneficial interest in an enterprise. There may, in future,

be some reason to define or narrow that further which we can't contemplate. When we

get to clause 4, we'll discuss that.

R. Merrifield: Just in order to clarify…. If this is dealt with in clause 4, that's totally fine

too.

[11:35 a.m.]

I'm believing that what the minister is stating, then, is that beneficial interest

isn't a promotion or a paycheque, but beneficial interest is more being able to benefit

from the overall asset. I'll just clarify. A person that is employed could have a

profit-sharing plan but isn't necessarily involved or engaged in the ownership structure

of the of the entity.

Hon. G. Heyman: Again, I think this question is better suited for clause 4.

R. Merrifield: Holding me in suspense. All right. I will wait to ask again, then, in that section.

I will note for the minister that the recent legislation on the Land Owner Transparency

Act — well, recent, 2019 — actually has very clear

definitions on beneficial ownership.

This takes us to a beneficial interest in the profits. That's kind of the line of

questioning. So I'll wait till clause 4 to ask further on that.

And 91.82 begins with "Subject to the regulations." What regulatory work does that

refer to?

Hon. G. Heyman: Well, the, regulation will be developed, and it will be developed in consultation.

It will be developed to ensure that it is appropriate to and defines the circumstances

in which action should be taken or to define what needs to be contained in a decommissioning

and closure plan, quite possibly in a different circumstance.

R. Merrifield: Then would this be the process, still, of engagement with industry as those regulations

come to fruition?

Hon. G. Heyman: Yes.

R. Merrifield: Then per 91.82(1), what requirements or expertise will be required of those who will

be required to produce the decommissioning and closure plans? What criteria is going

to be set for those who can credibly prepare those plans?

[11:40 a.m.]

Hon. G. Heyman: Upon royal assent to the act, we will begin work of further consultation with industry

and the public around the range of circumstances that are covered by this bill for

which decommissioning and closure plans could be required.

We will consult with industry around what specific qualifications would be required

for different types of decommissioning and closure plans perhaps. There may be a variance

by sector, or there may not, but we will specify that, ultimately, in the regulation

following consultation. But the qualifications generally would be those possessed

by a qualified professional.

R. Merrifield: What substances or things…? I'll leave that one alone just in the interest of time.

In 91.82(1)(a), we have "cause pollution." Could the minister give us a…? Is there

a list of those specific aspects that would be included under 91.82(1)(a)?

Hon. G. Heyman: The definition of pollution is found in the

definitions of the Environmental Management

Act as a whole. The definition of pollution means "the presence in the environment

of substances or contaminants that substantially alter or impair the usefulness of

the environment." Examples would be chemicals that are used in a particular process,

by-products of the industrial process, etc.

R. Merrifield: Thank you so much, Minister.

In the same subsection, under (b), land is actually specified but not water or groundwater.

Would either be included as a result of subsection (1)(

c) as it relates to

section

39(1) of the act?

[11:45 a.m.]

Hon. G. Heyman: The definition of contamination in 39(1) does include water.

I note the hour. I move that the committee rise, report progress and ask leave to

sit again.

Motion approved.

The committee rose at 11:46 a.m.

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