1993 Legislative Session: 2nd Session, 35th Parliament HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, JULY 19, 1993

Afternoon Sitting

Volume 12, Number 10

[ Page 8865 ]

The House met at 2:05 p.m.

Prayers.

U. Dosanjh: I have the privilege of introducing four friends to the House today: Amar Bains and his spouse, Harpal Bains, who live in Langley; and with them are Kirpal Singh Libra and Surinder Kaur Libra. Kirpal Singh Libra is a former member of the Punjab legislative assembly. He is visiting us in British Columbia. May the House please welcome them.

Oral Questions

CLAYOQUOT SOUND DECISION

W. Hurd: My question is to the Premier. The provincial ombudsman last week initiated her own investigation of the Clayoquot decision, marking the second time in as many months the government has been investigated for its decision on Clayoquot Sound. One of her chief concerns is the deliberate omission of the CORE process from the Clayoquot decision. Is the Premier prepared to admit today that he made a mistake in failing to acknowledge that the CORE process had any role to play in Clayoquot Sound?

Hon. M. Harcourt: Hon. Speaker, I answered that question last week.

W. Hurd: While the ombudsman has indicated her concern with the process, people are being arrested in Clayoquot Sound and tried for criminal offences instead of civil offences. My question to the Premier is: how can he defend arresting children and jailing protesters when the ombudsman of this province has expressed concern about the process of his government?

Hon. M. Harcourt: I'm sure the member is aware that the RCMP and the administration of justice are separate from the legislative branch, that the RCMP are dealing with people who are consciously deciding to disobey the law and in the tradition of civil disobedience are now taking the consequences of that decision, and that the RCMP and the courts are dealing with the due process of law. We are still governed by the process of law in this country of ours.

B.C. RAIL LABOUR DISPUTE

L. Stephens: My question is to the Minister of Economic Development. The impending threat of a full strike at B.C. Rail is forcing many of our northern community businesses to find alternative means of getting their goods to market. This is very costly and time-consuming. What has the minister done to alleviate this cost and disruption to these northern businesses?

Hon. D. Zirnhelt: The individual businesses are welcome to come to us. If it's serious, we can assist them through the job protection commissioner. Otherwise, I have prevailed upon the minister responsible for B.C. Rail to do everything he can to avert a strike.

L. Stephens: This B.C. Rail dispute is another nail in the coffin of northern business. Their suffering, as I am sure all members on this side of the House know.... I would like to know how this minister is standing up for B.C. business in cabinet and standing up to the labour unions and telling them that this 7.5 percent wage demand is outrageous.

The Speaker: The hon. member will appreciate that the confidentiality of cabinet does not allow the minister to answer that portion of the question, but the minister may address the other portion of the question.

Hon. D. Zirnhelt: There is no question that I have made my views known to the minister responsible for B.C. Rail and the Minister of Labour about the importance of the regional economies. They understand, and they make their concerns known to the management of B.C. Rail.

POLLING AND PREMIER'S POPULARITY

J. Weisgerber: My question is to the Premier. According to the Angus Reid poll, only 23 percent of British Columbians approve of the Premier's performance -- the lowest rating of any Premier in British Columbia history. I suppose that the Premier can take some comfort in the fact that he's still five times more popular than Audrey McLaughlin. Can the Premier tell us if the Angus Reid numbers are consistent with the recent polls commissioned by his government?

Hon. M. Harcourt: I think the member is aware that in politics there are peaks and valleys, and that sometimes you're up and sometimes you're down. I can say that in over 20 years of politics, I have had some peaks and some valleys.

J. Weisgerber: The Premier has not confirmed whether recent polls done by the government have confirmed those numbers or not. Will the Premier release any polls recently taken by the government? Will he further commit to release polls paid for by taxpayers' dollars as soon as those poll results are made available to the government?

Hon. M. Harcourt: The Leader of the Third Party was part of a government at one time that had an opportunity to bring in freedom-of-information laws and refused to do that. I find it ironic that he's now requesting access under the first freedom-of-information law in this province's history under which he can access that information.

J. Weisgerber: Supplementary to the Premier. This fall the Premier plans to spend thousands of taxpayers' dollars travelling around British Columbia, campaigning for the federal NDP. Has he also decided that he should question taxpayers to decide whether or

[ Page 8866 ]

not they approve of his plan to campaign around British Columbia this fall in support of Audrey McLaughlin?

Hon. M. Harcourt: Hon. Speaker, the Leader of the Third Party is drifting off further and further from the purpose of question period. But if he's asking whether as the Premier of British Columbia I'm going to be out in the grass roots among the people of British Columbia this fall, talking about the tough decisions this government has had the courage to make, yes, I am.

PREMIER AND B.C. SUMMER GAMES

R. Chisholm: Maybe the Premier should get out to the Summer Games. The B.C. Summer Games are opening this Thursday, and the Premier has declined the invitation to host his own Premier's reception. Does the Premier think it is appropriate for the Premier to take the political credit for the event and then boycott it?

Hon. M. Harcourt: I have spoken with the hon. member for Chilliwack about my attendance at the Chilliwack games. The games are going to be very successful. The Minister of Municipal Affairs, Recreation and Housing is going to be there. The Premier is going to be attending the people's business in the Legislature, to make sure that it is working on important issues for the people of British Columbia.

[2:15]

R. Chisholm: Maybe his popularity would be better if he started participating in these provincial functions. As of June 1, the Premier's popularity was at 23 percent -- and rapidly declining. Even Elvis Presley has 18 percent, and he's dead.

The Speaker: Your question, hon. member.

R. Chisholm: What is the Premier's strategy to improve this?

The Speaker: I would caution hon. members that the Chair is trying to be flexible today; however, members are reminded that questions must relate to the ministerial responsibility of the minister they are addressing.

PREMIER'S PROVINCIAL TOUR

A. Cowie: My question is to the Premier. Can the Premier inform the taxpayers of this province how much his tour around the province this fall to bolster his low image will cost?

Hon. M. Harcourt: It's not going to cost any more than it has in the past for a Premier to be among the people of British Columbia, dealing with the tough decisions we have had to make. I can say that it's going to cost a heck of a lot less than the member for Vancouver-Quilchena constantly rehearsing for some role in a Gordon Campbell-led opposition party.

A. Cowie: It doesn't take a lot of rehearsing.

The people of this province have no faith in this government. The Premier has already stated that he's not in control of the government. The last thing the taxpaying public needs is another useless PR exercise touring the province. Can the Premier confirm that he has hired a new image consultant -- Mr. Bill Vander Zalm -- and at what cost?

ALTERNATIVE ENERGY SOURCES

R. Neufeld: My question is to the Premier today, too. I guess it's your turn in the hot seat, hon. Premier.

The Premier's statement regarding negotiations with Alcan revealed just how dependent the province has become on electricity from Kemano. In view of this disturbing dependency, has the Premier decided to reinstate the former government's policies that supported alternative sources of independent power to meet our growing domestic needs?

Hon. M. Harcourt: I would hope that the member would have more confidence in British Columbia, which has the most varied and accessible sources of energy of any of the Canadian provinces -- or, as a matter of fact, of any jurisdiction in North America. We have access to other B.C. Hydro projects that could go ahead throughout the Kootenays. We have cogeneration projects that could go ahead in many jurisdictions throughout this province, and in the member's riding we have access to one of the great sources of natural gas.

I'm sure the hon. member is aware of the tremendous new drilling that's taking place in the Peace. We are blessed with many alternative sources of energy, and that's why I made the statement I did about our situation with Alcan.

R. Neufeld: It's obvious by the answer that we are in a bit of a tighter crunch than the Premier is letting the province know. But a premium of up to 25 percent on electricity generated by wood waste would eliminate the use of beehive burners. This policy would require hydro rate increases of less than 1 percent and would substantially reduce Hydro's dependency on Kemano. Why did the government kill this environmentally friendly policy that could now be contributing to the province's generating capacity?

Hon. M. Harcourt: We not only haven't killed it, we're looking at a number of those excellent proposa1s that, as the hon. member has said, allow wood waste to be burned in an environmentally acceptable way -- to get rid of the fly ash problem, for example. I agreed with the actions of the previous government and supported those of the cogeneration plant in Williams Lake that have not only produced more power but have also gotten rid of a fly ash problem, taking care of a social and environmental problem that that community faced. There are others from the private sector that could go ahead, and we are looking at those proposals at this moment.

The Speaker: Final supplemental, hon. member.

[ Page 8867 ]

R. Neufeld: There are numerous applications for independent hydro and thermal projects that could also supplement our domestic energy needs. What steps has the Premier taken to expedite those applications, in view of the concerns raised by the Premier last week about Kemano?

Hon. M. Harcourt: First of all, they weren't concerns; they were laying the record clear for the people of British Columbia and asking the appropriate ministers to clear with Alcan, in 30 days, exactly what they're proposing to do. I have made it absolutely crystal clear that British Columbia has not only more energy sources but also more potential for increasing our energy than any other jurisdiction in North America.

TAX ON LEGAL SERVICES

A. Warnke: My question is also for the Premier. In response to the lawyers' launch of a fresh court challenge to the B.C. tax on legal services, the Premier's Minister of Finance said: "If they find a loophole, then we'll bring in a further legislation next year to close that loophole. I'm puzzled why the Law Society would spend hundreds of thousands of dollars on court fees when they know the government is determined to proceed on this issue." Has the Premier told his Minister of Finance that to waste the time and the money of the public and of the courts and to show contempt for the courts and the legal process is simply not on?

The Speaker: The bell signals the end of question period.

Orders of the Day

Hon. R. Blencoe: I call committee on Bill 32.

ENVIRONMENTAL ASSESSMENT ACT

(continued)

The House in committee on Bill 32; E. Barnes in the chair.

section 4.

A. Warnke: I just want some clarification at the outset as to whether we are on

section 4 or have passed sections 1 through 3. We have passed sections 1 through 3, is that right?

The Chair: Yes, we have, hon. member.

A. Warnke: We are on

section 4? Thank you, hon. Chair. This particular

section suggests that the minister may designate a project as a "reviewable project." The term reviewable project has been used in different ways here. In the context of

section 1, a reviewable project is further defined, so I think we have canvassed that at length. But by the same token, in the context of this particular section, I would like to ask the minister what the nature of this

section is as it relates to the concept of reviewable project.

Hon. J. Cashore: The projects will be defined as being reviewable pursuant to the regulations that are going to be developed over the next year. It is true, however, that in the course of events there are projects that are happening for the first time ever, and there are projects that, because of particular circumstances, require the ability to be brought into the environmental assessment process because of the public interest with regard to potential impacts that could result from that project.

I would point out that this provision exists in virtually all the other environmental assessment acts that have come into being in Canada in the last few years. It is a clause that is not used very often, but it is there as insurance to make certain that projects that have not yet been defined, or because of special circumstances require review, would come forward for review. Once a project comes forward it would be subject to the same process as outlined in the act, which would include the first phase where a high percentage of those processes would come in and go out in the first phase. But it would be subject to the scope of this legislation.

A. Warnke: I appreciate the answer given by the minister. I guess what confused me at the outset is that the minister "may designate a project as a reviewable project, even though it does not constitute a reviewable project...." In my mind, the language seemed to create some inconsistency. The latter part of that particular

section says "...the project has or may have a significant adverse effect and that the designation is in the public interest." I am wondering if the minister could outline what constitutes the elements of what may be considered to be "in the public interest," and how the minister would go about making an assessment as to the significant adverse effect on a project.

Hon. J. Cashore: It would be projects with a similar potential environmental impact, or other impacts, as would be the case with the projects listed in the regulation. Projects similar to those in the backgrounder would have obvious potential impacts. The purpose of this is to protect the public and to make sure we are in a position to deal with a potentially bad impact. It's there as a precaution. As I said before, it exists in virtually all other environmental assessment legislation. It's a very standard type of provision. It is there to ensure that we are protecting the public interest.

[2:30]

V. Anderson: A member across the hall says that it's an insurance policy. But in an insurance policy some categories are written in, and you know what the policy is for. This is a blank insurance policy, and therefore there is some concern.

Looking at the definition of a reviewable project in

section 3, the minister says that the regulations will then come from Lieutenant-Governor-in-Council, so

[ Page 8868 ]

there is an open-endedness in dealing with it at that point. In

section 4 it says that even the minister, I presume, has input to the Lieutenant-Governor-in-Council in making regulations. If the Lieutenant-Governor-in-Council were to make regulations and adopt only some of the regulations that the minister has suggested, the minister still has a blank cheque over and above the Lieutenant-Governor-in-Council to put his own regulations into effect. Why would the minister not go back to the Lieutenant-Governor-in-Council for a change or an addition in regulations rather than doing that on his own?

Hon. J. Cashore: In this circumstance, we want the ability to review a type of project, but not necessarily all projects in that category It wouldn't be necessary in some instances.

If a new genre of project was coming on stream, then the hon. member makes a good point. In due course you could arrange for an amendment to the regulation. But in the meantime you need to be able to act, because you need to be able to operate in the public interest by being able to make timely decisions. As I said before, this is a standard process; it is not a blank cheque. A blank cheque, in my view, would have a direct impact on that proponent and would give the minister unlimited powers with regard to that proponent. The only power here is to bring it into a process which is fair, and in which a very large number of projects are in and out during the first phase.

D. Jarvis: On that premise, I assume that you feel you will be in a neutral position. I have a feeling -- and I've had many people contact me -- that if you have the power to designate what environmental project may be entitled to go before the review board, that's not putting you in a neutral position. Do you want to elaborate on that, sir?

Hon. J. Cashore: I don't think the question of neutral position is really operative in this issue. This is an Environmental Assessment Act. It's brought in in the recognition that it's in the public interest. I believe it's in the public interest, as outlined in the election platform of the official opposition, that there should a single-window environmental assessment process.

The question of neutrality comes in with regard to the way in which the process would be operated. I am not apologetic at all in pointing out that this has a high degree of neutrality built into it, given that you can never have a completely neutral process because you have to have decision-makers making decisions. Those decisions do come back to cabinet eventually.

V. Anderson: Almost any business or organization planning to develop a project of any kind within the province now has some kind of environmental concern. What kind of guidelines or assurance can a business have, once they begin to develop their project and are well on their way, that their project is not going to be scuttled?

If they go according to the regulations once they're in effect, then normally once you read those regulations you would be able to say: "I meet all those standards; therefore I'm free to go ahead because I've met the regulations." But under this process -- no matter what research they do -- unless they go to the minister at the very beginning and say: "Sir, can I have approval to go ahead?" then they're into the process, have spent their money and done their research, and they are cut off at the pass.

There's absolutely no assurance for developing anything, when the regulations themselves don't give you a guideline as to what you can develop within the province.

Hon. J. Cashore: The hon. member is back onto some of the earlier sections, where we dealt with the issue of making regulations. There will be opportunity in further sections to deal with that question more specifically.

The fact is, hon. member, that regulations are part and parcel of virtually every environmental assessment act. I would point out that the

section of the Alberta act that was read into the record by the member for Powell River-Sunshine Coast is very similar to another

section in our act, which does not outline the reviewable projects but does outline the process for defining what those reviewable projects are. While he was purporting to read out a list of reviewable projects, he was not doing so. I would urge you to look in Hansard to see where he said specific projects were outlined. This is standard with regard to the way the projects are defined.

This process provides assurance to the business person that was not there heretofore, because the regulation that is required by the legislation, after a process of consultation with those businesses, will define exactly how we should proceed and how those time lines will be in place. I believe that the concern being expressed is not a correct one.

Also, I would encourage the hon. member to clarify whether or not it is the position of the opposition that we should have this loophole, whereby some projects that should be reviewed in the public interest would not be reviewed. I think it's very important that we not have that loophole and that we have a means of ensuring that those projects are reviewed.

V. Anderson: To respond to that, the minister has indicated loopholes, and that's exactly the concern: loopholes in both directions. Two questions come up. If the minister makes this judgment outside the regulations, is that appealable and to whom? If the minister is making regulations beyond the regulations, does he have a community committee or someone to

[ Page 8869 ]

report to, so that it's not just at the minister's whim? We might trust the present minister, but there are going to be many ministers in the future. We're concerned about whether there is some protection if the minister doesn't happen to be objective in this undertaking. Is there some place where you can appeal it because it is outside the regulations? How can a person deal with it when there's no process?

Hon. J. Cashore: The answer is very clear. The process is the first loop in the process that we would be entering into. If the minister had been mistaken and it was not in the public interest, it would then be up to the advice of the project committee. The hon. member talks about having a committee to refer to. As a matter of fact, this project committee is defined in the legislation.

As I say, when that project is brought into the process, it goes through the first loop; the vast majority would be in and out at that stage -- "out" meaning that they would have their approval certificate to proceed. Some of them possibly could be rejected outright at that stage if that was the advice of the project committee. If that was the case, it would be exactly such an instrument as the hon. member is referring to. That project committee would be a legislated instrument.

C. Serwa: After looking at

section 4, it would certainly be wise for the minister to consider withdrawing it. It's one of those little sections that appear to be inoffensive, but the power and potential for the unprincipled abuse of power is contained entirely within this section. Clearly, as I said before on

section 3, cabinet can by regulation designate a class or kind, so there is no limitation. This is a fairly standard and easy procedure done in OIC and, as a matter of fact, it may be repealed in the same manner by OIC. I draw very little comfort from the minister's remarks when he says that other jurisdictions have virtually the identical clause. Whether they have or not is beyond my knowledge, but I'm confident that they do not have that in the context and the framework of this particular legislative package. Here we have a policy where obviously cabinet, the executive branch, can bring in a defined project by regulation. This reviewable project designation is a critical issue.

What we're seeing in this particular

section is the potential for independent or unbridled abuse by the minister or the ministry on the basis of a threat. When the minister indicates that one type or group could be identified for an independent environmental assessment review, I can clearly see the fine hand of this arrogant government in that statement. They will utilize that through threats and coercion to force some sort of compliance, whatever it may be. It may be for the good -- an environmental concern that they have -- or it may be for compliance in some other facet of their operation, but that power is clearly within this section.

It's not necessary; it's not required. I think the minister knows and understands that full well. Again, I'm not comforted by the other jurisdictions he referred to, because I'm not convinced that the wording is exactly the same or that the context in the framework of the legislation is required to allow that type of latitude.

Hon. J. Cashore: The hon. member says that he's not comforted by the other jurisdictions referred to. I would ask him to consider being comforted by his own jurisdiction, and to remember the time when he was Minister of Environment and was responsible for administering the Environment Management Act. There is a virtually identical clause within the Environment Management Act that gave this hon. member when he was the minister the very power he is now condemning. This is a very serious point.

Section 3 of the Environment Management Act says:

"Where the minister considers that a person proposes to do anything that would have a detrimental environmental impact, and that the environmental impact cannot be assessed from information available to the minister, he may require the person to supply an environmental impact assessment in respect of that thing, prepared in accordance with the regulations."

So here is a power that this member had when he was the minister, which has existed only during the time of the Social Credit jurisdiction. At this point I'm not going to engage in the kind of rhetoric that I hope isn't going to creep into this discussion, because I really don't think it's an issue of draconian governments and that kind of language. In fact, I'll state very charitably that it was not abused when that member's party was in power. It would not be abused, because very seldom would there be the type of situation where it would be required.

[2:45]

I would point out also that in the present Mine Development Assessment there is a clause that has virtually the same power. It enables a project to be brought in that isn't defined in the regulations. The Utilities Commission Act has an enabling power to bring in a project that isn't defined -- albeit some of the processes are somewhat different, but there is a means of bringing in an undefined project. Again, that was possible through the major project review process, which was another instrument of the previous government. As I've said before, I believe this hon. member was very active in that process at that time.

Going on to other jurisdictions, let's remember that in Alberta there are two provisions for bringing in undefined projects. One is by a senior bureaucrat in

section 41:

"Where the director [of environmental assessment] is of the opinion that the potential environmental impacts of a proposed activity warrant consideration under the environmental assessment process, the director may by notice in writing to the proponent advise the proponent that the proposed activity must be dealt with under

section 42."

section 45, the minister is given that power as well. So in Alberta that power is given to a senior bureaucrat and also to the minister.

In Manitoba, it says: "Where there is a disagreement as to whether any project, industry, operation or activity, or any alteration or expansion thereof is a development [and therefore subject to environmental assessment], the matter shall be determined by the minister."

My point, hon. member, is that this clause is very clearly in the public interest, which is to enable bringing

[ Page 8870 ]

in a project that is otherwise not defined. I think the member for Vancouver-Langara asks a very good question: "What are the checks and balances to make sure that this power isn't entirely in the minister's hands?" The answer is: the legislated project committee that kicks in at the first phase of the environmental assessment process. Once that project has been brought in, that is the instrument that enables the process to take place. So once it's brought in, it is only subject to the process that's being outlined and discussed within this act.

L. Hanson: Hon. Chair, with your indulgence -- because I think it is very important to this

section -- I would like to refer to the purpose of the act which says that it is "to provide for the thorough, timely and integrated assessment of the environmental, economic, social, cultural and heritage effects of reviewable projects." I suspect that means that any or all of those could be considered in a project that should be reviewed.

Through the process of order-in-council and regulations, it is understandable that those considering any kind of project will have some indication of whether it is or isn't reviewable. But

section 4 seems to say, despite the description in the purpose

section of the act and despite the regulations that outline the categories of reviewable projects, that "if the minister is satisfied that the project has or may have a significant adverse effect" -- it doesn't say on what; it just says that it might have a significant adverse effect -- and if "the designation is in the public interest," he can order it to be reviewable. That seems to make the information as to purpose and the information in regulations totally over-ordered in the hands of the minister by this

section of the bill.

Hon. J. Cashore: I think I have answered that question a number of times. I'll just say once more that it's in the public interest. I would assume that hon. members would agree that it's in the public interest that a project should not go forward simply because it isn't named in regulation and that it could be in the public interest for various kinds of purposes but primarily environmental considerations. If a project was to go forward and ended up contaminating the water supply of your constituents, and the only reason was that there was a loophole because it wasn't described in regulation, the hon. member would be the first to express deep concern about it -- and so he should.

As I have said, this enables bringing a project into the process, but at the point at which it's brought in, the process itself has checks and balances. The very first stage of that process is what we are referring to as phase one, where the project committee works to assess whether or not this project requires going to yet another stage. It is not the type of thing that means a proponent's project is suddenly taken away and put into endless process; it would mean that it was subject to the process being outlined in this act.

The feedback from the business community, through the consultative process conducted by the member for Nanaimo, was that they don't mind an Environmental Assessment Act -- they think we need one -- but they want to know where they stand. The industry has been clearly aware of this section. They are fully aware that this is a power provided in the other environmental assessment acts in Canada. As I pointed out -- and I want to re-emphasize this -- the hon. member's colleague, who is a former Minister of Environment, had virtually that same power under the Environment Management Act.

That power was not abused, but it was there in case it was necessary -- and so it should have been.

C. Serwa: The power was not as broad or as expansive, and the minister is quite correct that it was never abused. I'm going to bring an example into this debate to express my particular concern -- not with the minister or the ministry, because I have the highest confidence in both -- about the attitude of the government of the day that the end justifies any means.

The case I want to bring in to illustrate my specific concerns on

section 4 involves the Minister of Agriculture and the village of Osoyoos. A short while ago two properties apparently owned by the railway were coming up for tender, and because of the cost, the village didn't want to bid on them. An independent owner bid on those two properties. Subsequently, the village decided that they would like to utilize one of the properties for a park. The minister counselled the community and the mayor to withhold rezoning on the other one to force the developer to give up the second parcel that they had purchased through legitimate channels. This can be checked on.

It has been recorded in newspapers, and there are the words of the Minister of Agriculture. What I'm concerned about is the unprincipled and unbridled arrogance in the utilization of this type of act, where any means can be justified by the end. That is the aspect that concerns me. The minister already has the opportunity through cabinet. Hon. Chair, you and all the rest of us are comforted when the larger group has the opportunity to participate in the decision.

The mechanics of that larger group are not any more difficult; cabinet meets once weekly, and regulations can be drafted as quickly and as sensitively as required. Cabinet has that option and ability. I would personally have far more comfort in the stability of that type of decision, because with this latitude in

section 4, I see the opportunity for a random, impulsive or arbitrary decision to be made on the counselling that may sway one individual quite readily, without the prudent advice of, for example, the minister's colleagues. The only constant in government is change, and we may have a new Minister of Environment after the cabinet shuffle. I don't know that, but I would probably have less confidence in other members than in the present minister. I am concerned about that type of arbitrary, impulsive decision-making being granted to one individual, when the mechanics and the time element in

section 3 no longer conform or comply because regulations can be drawn up. As the minister points out, if it is not necessary, then they can be very quickly repealed. That is clearly evident, and the power and the authority are there. This one leads to a substantial potential for abuse of the power. The power is much greater than ever before, and it can be utilized, as I said, in threats or coercion to business or

[ Page 8871 ]

an industry that has proceeded in good faith -- not as a reviewable industry, for example -- and all of a sudden it is caught in the complexities.

D. Lovick: Do you think the project review committee won't see that? Do you think the public won't see that?

C. Serwa: I listened to the hon. member's remarks. I see a great deal of insensitivity in the realities of the world, where time is money. You can have interim financing only for a certain period of time, and you have to pay interest on the money. You have to work with suppliers and get everything on line. There is a completely coordinated plan of a very complex series of events that have to take place until you get an industry into proper production. I am concerned about the jobs in the province. The reality is that this type of legislation can do nothing but hinder, by setting up potential roadblocks.

It doesn't take any more than that to shake the confidence of potential investors in the province of British Columbia. Surely the licence granted under

section 3 is more than adequate to address any concern put forward by the hon. minister in

section 4. Those are some of my concerns on this section, and I would appreciate a response from the minister.

Hon. J. Cashore: I don't think there is much point in going over this again and again. I have pointed out that it is in the public interest to have the ability to bring in a project that might in fact be harmful to the constituents of the hon. member who has just spoken. In doing so, there is a check and balance in the first phase. The project committee would review whether or not this project should be subject to a further review stage. That would be a very time-limited process, and it would not take a long time.

I think it should be pointed out that in most instances, the industry itself would be asking the government to give it the benefit of this process, so that that industry would know what the expectation was. This would not be random or impulsive. Apart from the points that the hon. member makes, the fact of the matter is that any minister who goes about making decisions that are contrary to the corporate interest of the government -- to their colleagues in cabinet, if you will -- is obviously going to be dealt with one way or another. That is the way our parliamentary democracy works. Therefore there is a check and balance right in that part of the process as well.

Another check and balance on the part of these processes is that we are judged by the way in which we administer the acts that we are responsible for. I don't think any member of the House would stand up and argue that we want to leave a loophole that would allow certain projects to go ahead where there is a potential for them to have a deleterious effect on their own constituency, for instance.

C. Serwa: As I said at the start,

section 4 is an incredibly important section. It may look innocuous, but the minister hasn't indicated one valid reason for it being here. The differential in the time element, for example.... With most projects that come onstream, there is a substantial amount of time for the information to come out. Using the options under

section 3 or

section 4, the time element is immaterial. I can see no advantage for

section 4 whatsoever, and I'm concerned about it. In his comments a few minutes ago, the minister indicated that the concern and the opinion of his caucus colleagues would come to the fore if a decision was made that didn't satisfy them. Because of the requirement for solidarity of cabinet, the reality is that whether the decision was good, bad or indifferent, it requires the support of cabinet. There's no question about that; we're all aware of it.

[3:00]

An arbitrary or impulsive decision or a decision made on less than the full spectrum of objective facts, once initiated, is simply not reversible. If the minister is confident of the support of his caucus colleagues, it seems to me that we have the mechanism already. The time element has to be a critical issue, and the minister hasn't indicated that it's more expeditious to go along the parameters of

section 4. There has been no substance enunciated that will support

section 4, other than the reality that other jurisdictions have accepted

section 4, and that it's contained in Alberta, Manitoba and federal legislation. I have not been informed of the real substance for including those comments in this section. I have to be satisfied that there is more than: "Well, others have done it, and if they've gotten away with it, then what's good for the goose is good for the gander." Surely this legislation is drafted on the basis of substance and not simply what others have done.

Hon. J. Cashore: With all respect, I have answered that question, and I have invited the hon. member to say if he is advocating that there be a loophole there and that there be the possibility that a project could go through, even if it's a cause for potential environmental concern, simply because it didn't happen to be on a list. If he is advocating that, he should say that very clearly. I have given him the substance of the reason, and that is a potential deleterious effect on his constituents, my constituents or the constituents of any member of this assembly.

That is a very valid reason to ensure that there isn't a loophole that would mean a project that should be subject to review would not be.

The hon. member refers to time lines. I have answered that also, in saying that it would be subject to the time lines as outlined in the regulation pursuant to the various phases of the act. As I said before, in most instances it would be dealt with in the first phase. I have dealt with the questions that the hon. member has raised. Perhaps we just agree to disagree on some of these points.

The Chair: Before recognizing the hon. member, I would like to caution the committee that since we started the debate on

section 4, the Chair has listened carefully for any indication that members have not committed the violation under standing orders of

[ Page 8872 ]

becoming tedious and repetitious over canvassing a matter which clearly has been exhausted.

I would ask the member for Okanagan West to keep in mind that we are not in second reading. We are in committee, dealing with the wording of sections, not the principle of the bill.

C. Serwa: Hon. Chair, I am confident that you have been listening very closely. I'm not quite as confident that the Minister of Environment has been listening as closely as you have. The Minister of Environment just made a statement that I am advocating a loophole. I can no more accept that than I could accept that the minister himself would advocate a loophole. I am not going to do that.

The issue before us is apolitical, as far as I am concerned. But the concern has to be with what is appropriate. It has to be fair, well-reasoned and balanced. The reality is that the mechanism does exist, and the minister does not require the power authorized under

section 4. I think the minister has to concede this; I think he has conceded it to a degree. The only validity for this is with respect to the concept of the loophole. Perhaps the minister can explain how he or the ministry or the Minister of Environment can catch hold of a loophole that escapes the minister and the entire cabinet. I fail to understand that.

V. Anderson: The minister raises the point that this is an environmental review, but I think he misses the point. The purposes include economic, social, cultural and heritage review. One of the reasons we feel that there should be a reference here to the Lieutenant-Governor-in-Council is that the minister is also responsible for those parts of the review that would be involved. What we have here is a business review of their cultural, economic, social and heritage effects. I want to make sure that the minister is aware of the nature of the concern.

What they have said is that after one has read the act and the regulations that are in effect, it is then incumbent upon every business, in developing a business plan -- no matter how insignificant the business might be -- to have gone through the ten stages of

section 8 that the minister has referred to, and to have them in place to deal with the cultural, social, heritage, economic and environmental effects. Having this authority, the minister stresses the point that it is a business plan assessment; it is not an environmental plan assessment per se. That is why the concern is so great that it does not go back to the Lieutenant-Governor-in-Council. If

section 4 were simply to say that the minister may be able to refer this decision to the Lieutenant-Governor-in-Council for him to act on it, that would solve our problem.

Hon. J. Cashore: There would be a mix of expertise on the project committee. That is where you would find the balance.

W. Hurd: I just want to explore the circumstances under which a project which didn't meet the regulations might be referred to the minister. Assume that a company had its financing in place, was accruing considerable expense in terms of pre-project planning and had received some sort of indication that the project wouldn't constitute a reviewable project under regulations.

Is the minister now suggesting that in the unlikely event that a third party intervenes and expresses concern about this project, the company should be seeking some sort of information from the minister as to whether or not they might have a project that doesn't fit the regulations? Because of intervention by a concerned environmental group or a wildlife organization or anything else, may the company find itself having to submit to a review ordered by the minister?

Hon. J. Cashore: If the project is well designed and implemented, there would be no reason whatsoever for it to be brought into this process.

W. Hurd: I think the issue I am trying to raise here is one of investment by the company, and the fact that considerable work goes into a project which might have environmental significance. I'm asking whether third-party intervention, pointing some issues out to the minister, might result in this project being reviewed, when the company had made the investment with the information or assumption that under the regulations it wasn't a reviewable project.

This is an important point, because we've already dealt with a bill in this House that specifically exempted appeals to cabinet when it comes to such issues as the agricultural land reserve and others. My concern is whether a third party, by launching a complaint or expressing a concern, could trigger a decision by the minister to order a review

Hon. J. Cashore: As I said, if the project is well designed and well implemented, it's not likely. But let's just put a hypothetical situation out there. If the hon. member was administering the act and had that responsibility, and if this hypothetical third party came forward with something that gave this hon. member in that role the knowledge that yes there was a serious consideration here in the public interest that had been missed, in that hypothetical situation I think the hon. member would say yes, we'd better protect the public interest by making sure that the appropriate environmental review is done.

I'm saying that that's very unlikely, given that in most circumstances adding a well-designed, well-implemented project that is not on the list to the process would not even be considered. But in that hypothetical instance, where one who has that decision-making responsibility finds out that yes, there is a serious concern here in the public interest, then in that instance presumably that's a possibility.

But let us remember how I responded to the question of the member for Vancouver-Langara. He said that there should be a committee and a process that the minister can refer to. The existence of the committee is legislated right into the legislation; it would be the next body that would have to deal with that.

W. Hurd: I really fail to understand how that's going to allay the concerns of a company that might be proceeding with what it considers to be one set of rules.

[ Page 8873 ]

It may engender a situation which might cause a third party to launch what could really be an expression of frivolous concern, in some cases, about environmental impact. As the minister well knows, when it comes to environmental questions, there are many claims and counterclaims out there. Very often, the public interest is directly driven by the amount of publicity that can be generated. I'm asking -- and perhaps we can deal with this later in the bill -- what referral mechanism will exist if an environmental lobby or anyone else tries to intercede when the financing is in place and the project is proceeding?

My concern is from an investment standpoint. Before they can engage in these projects, companies are required to secure financing and issue time lines for completion. Under this section, I can see projects being derailed or delayed and costs increasing incrementally.

I don't necessarily expect any comment from the minister on this, but the lack of security of due process, and the fact that the minister has the ability to intervene when it is in the public interest, could really have a dampening effect on investment. The public interest can be a very nebulous term, as we've seen from some of the environmental issues in this province. I welcome comment on whether the minister is completely secure with this

section and hope that he will not bow to the pressure or third-party intervention that can be somewhat difficult for a minister of the Crown to resist.

Hon. J. Cashore: I think that's a good point: to bow to that kind of pressure would be harmful in a number of ways, including harmful to the government. It is true that the laws on the books have to be administered appropriately. And there's no absolute guarantee; it depends on us having the people there who are going to do that appropriately.

The point the hon. member makes about investment is very legitimate. I don't argue with that concern at all. It behooves government to administer appropriately. But the fact still remains -- since we live in a changing world -- that from time to time there could be projects that aren't in the definition that comes out of the regulations of projects. In those instances, you need to be able to act in the public interest.

If public interest is a nebulous term, the public interest in this case -- in most instances -- is an environmental consideration. We all know, for instance, that British Columbia has the highest incidence of water-borne disease in Canada. We have to be able to protect the public interest when it comes to a potential for something heretofore undefined coming along that could very seriously impact on that resource. That's an example of the public interest.

[3:15]

But the hon. member is right. It has to be administered fairly, and there has to be a great deal of judgment, perception and discretion in the way this would be done. The fact is, a similar provision is in the Environment Management Act, and it has never been abused.

D. Mitchell: I want to follow up on this just a bit further, because the minister has raised some interesting points here about

section 4. I think we've already had a very interesting and useful debate on

section 3 of this bill in this committee.

Section 3 deals with reviewable projects and what can be considered a reviewable project. The minister has told this committee that virtually any project can be reviewable subject to

section 3. The scope is extremely broad.

With

section 4 we're finding that the minister has the power to go well beyond that, basically to say that even if a project isn't reviewable under the very broad scope and doesn't fit the criteria of

section 3 -- which could conceivably capture just about any economic development project in this province -- the minister has the power to designate such a project as reviewable. I don't really believe the minister has made the case for why this power is necessary, given the broad scope of

section 3.

The concern already raised in committee today is of possible abuse of that power -- not abuse by this minister, but perhaps by any future minister who might have such broad arbitrary powers to designate any project that otherwise might not be reviewable under the Environmental Assessment Act, Bill 32. It raises the spectre of dealing in hypothetical situations, which the minister already has done, on an issue where there might be a kind of political blackmail. A proponent may bring forward a project that doesn't fit the criteria of Bill 32.

But if the government wished, for whatever reason, to wield a sledgehammer over a particular project proponent, the threat of making a project reviewable could exist. One wonders why any government in British Columbia today would require that kind of sledgehammer or power, which is conferred upon a minister of the Crown in this legislation. It's very broad and subject to abuse. I think the minister would agree that it's subject to at least the possibility of political blackmail.

The minister really hasn't made the case. Would the minister not agree that that potential for abuse is there? Could the minister tell us what safeguard there is to protect us from that kind of blackmail?

Hon. J. Cashore: Just to correct the hon. member's wording, this would be designating a project to come into a process. It would not be making the decision about the outcome of a project; it simply would be designating it into the process. The provision within the act -- and it is spelled out in the act, not in regulation -- is a 30-to 45-day period for the public review that would be carried on by the project committee. By regulation, there would then be a length of time for a government review, depending on what came out of the project committee. In the vast majority of instances, that would be in and out during the first loop.

Here we have a situation that has very seldom been used under the mine development review and energy development review processes, but it is there if necessary. I don't think there are any examples hon. members can come up with, either in this jurisdiction or in other jurisdictions, where these powers that have existed for a long time in other legislation have been abused. I don't think that is the way in which

[ Page 8874 ]

government.... Let's remember that government not only involves elected representatives, but -- especially within this ministry -- it also involves excellent career civil servants who have been there for a long time and who give the technical advice to the minister necessary to administer this in the best way possible. In our political system, it's in the interest of the minister to administer it in the best way possible.

I have also pointed out that this kind of clause is not doctrinal in that it exists in the legislation that has been brought in by far more Tory governments than NDP governments. It is consistent with legislation that has been brought in by other governments in other jurisdictions.

D. Mitchell: I have one more question on this. I understand what the minister is saying, and I am not suggesting for a moment that this minister would have the intent of abusing this regulation. My concern goes beyond this minister's term in office to any future Minister of Environment that might have this power. I am certainly not making any suggestions that this minister might abuse the power.

The minister refers to the fact that similar clauses in other statutes have not been abused. Maybe that's an argument for not having this kind of clause if similar statutory authority has never been used or abused. The issue here is one where the minister is so far unable to tell the committee where the guarantee is to prevent a future minister of the Crown -- who has this broad, arbitrary power -- from saying to a proponent of a project: "Listen, if you don't play ball with us, then we're going to put you through the process.

We're going to force you to go through these hoops, which will effectively kill your project." Where is the guarantee that a future minister, who might be inclined to abuse this power, will do so?

Hon. J. Cashore: I have answered that question in response to several individuals, but let me answer it one more time and with all respect, hon. members, I will not answer this question again, but I will answer it one last time.

The hon. member has asked where the guarantee is. Hon. member, we are legislators. We deal with legislation, and the fact of the matter is that no legislation exists anywhere in the world that provides absolute guarantees against the possibility of being mishandled. We have to recognize that it's not the function of legislation. I know the hon. member has been a student of political science, and I know he understands that full well himself. So there isn't that kind of guarantee in the legislative sense.

Where, then, are the guarantees? The guarantees are in the sometimes cumbersome but nevertheless best system in the world we know of in which we function: our system of parliamentary democracy. When you have ministers exercising powers in a way that is unwise in our system, that individual then becomes judged on the basis of that and has to pay the consequences for that. I think that applies to people no matter what political stripe they happen to be.

In this particular case, we are not talking about a decision that decides for all time what happens to this project. In the unlikely event that it gets designated -- and history has proven that it's a highly unlikely event -- it would be subject to the instruments that are in the process and that are designed in the bill.

This hon. member asked a question before about independence. Well, it would go to the project committee. There would be different kinds of expertise there, and in most cases, it would be in and out during that phase of the process. In one of my answers I pointed out that there is legislation around the amount of time that the project committee can work on it, and then there would be some further time in which the government itself would have to review the advice that it had received. So it's not a decision to grab somebody's project away that will never see the light of day again.

It's a decision that is in the public interest that it be reviewed. Hon. Chair, I have answered this question several times. I don't wish to be impolite, but I will not rise and answer this question again.

C. Serwa: I asked a question a few minutes ago, and the minister did not rise and answer. I'll try to rephrase that question again. My question is with respect to

section 4, that the designation is in the public interest. The minister has talked a great deal about the public interest, but it's clear that the public interest has not been well served by the minister's own government. A recent note in the paper indicated clearly, in the civil service as well as in the public at large, that the public is not confident that the public interest has been served. That's one point I want to make on

section 4, because public interest is integral to that. The mood out there, both in the civil service and in the public at large, is that the public interest has not been served by the government of the day. So while the minister continues to enunciate with reflections on this, it is clear that his confidence is not shared by the public.

The other point I want to make is that the government has continued to bring in acts following through with freedom-of-information and privacy legislation. It's important in this exercise that the public, which is not a direct participant in this process but an indirect participant, be given the opportunity to understand the substance and the rationale behind the actual sections that we're discussing.

The question I had previously addressed to the hon. Minister of Environment was: what possible advantage would the minister have in making a decision about a project that should be considered reviewable by all the members of the executive branch of government? What possible advantage could the minister alone have? I think the public deserves an answer, because the rationale behind that escapes me.

Hon. J. Cashore: The fact that the Minister of Environment administers the act means that the Minister of Environment sees virtually every project that is to be considered. So it's simply an administrative responsibility that fits.... Again, it's consistent with all the other jurisdictions in the country. So it's a very consistent part of the process.

[ Page 8875 ]

The hon. member has said that I have not articulated the reason for requiring this type of consideration, but the hon. member should recall that during the time he was Minister of Environment he did not take steps to remove the provision in the Environment Management Act that gave him virtually the same power. All his arguments, therefore, have to be considered in that light, because he's saying that during the time he was the minister it might have been okay, but that with somebody else it might not be so good.

He had the opportunity at that time, and in his wisdom, he left a clause in the Environment Management Act that is no different, in essence, from this clause in this act. This is pro forma, and it's a standard kind of clause to help deal with the public interest.

[3:30]

I have been asked so many times about what the public interest is, and I've given several examples. I will just very briefly state one example, one that has to do with water quality. We in B.C. have to be very concerned about impacts on water quality, because we have the highest incidence of waterborne disease in Canada -- here in pristine British Columbia. We do have to be concerned about that; that's in the public interest. Also in the public interest is a viable economy in which there can be investment. That too is in the public interest. That point is well taken. I'm not trying to be testy here, but I have answered several of these questions several times.

J. Tyabji: I have been following this debate with considerable interest since it began. The first comment I have to make is that it is regrettable that this late in the session, when we have a record number of pages of legislation in front of us and a bill of this magnitude, the government throws protocol aside in a disgusting attempt to push it through, and calls the bill forward for debate without the lead critic here -- who, in fact, has not arrived as we speak. Not only do we have this monumental bill of great significance to the people of this province, with an immense number of consequential amendments to sections of the bill, but....

The Chair: Order, please. Would the hon. member please take her seat. The Chair has listened for about two hours while we've been on

section 4 to what has obviously become fairly repetitious and tedious debate. While the Chair doesn't wish to intervene in permitting the members their say on this section, it's difficult for the Chair to have a member who has not been here during that period of time come in at this late stage and go into second reading debate. At the very least, I would ask the hon. member to address her remarks to

section 4.

J. Tyabji: In fact, I have been here for most of the debate. With regard to

section 4, however, the minister has made a number of references to the fact that there are sections like this in other jurisdictions. He has said that we have federal legislation like this, and that some of the other legislation already on the books in this very ministry gives this kind of power to the minister. What the minister hasn't addressed is the fact that when we were in the earlier sections of the bill, we did not have an adequate definition of public interest. We do not have the regulations before us that will accompany this bill. We don't have an adequate account of what reviewable projects will be, so we don't even know whether, when

section 4 says that if it's not even constituted as reviewable, the minister has the discretion to make it reviewable.... We don't even have that in front of us to make that distinction. When we read it here, it says: "...if the minister is satisfied that the project has or may have a significant adverse effect...." The question is: on what? Are we to assume, because it isn't specified, that it's on the environment exclusively? Or could it be a significant adverse effect, as we see earlier in the bill, on environmental, economic, social, cultural or heritage matters? Is that the effect, or are we going to just leave that with environmental?

Hon. J. Cashore: I have answered that. The answer is: in the environment, primarily.

J. Tyabji: I have been listening to the debate. I didn't hear an adequate.... Since we don't have a definition of environment to accompany this bill, I don't think we have a very good idea of what kind of discretion the minister is going to be exercising. If it is going to be primarily on the environment, then are we to assume that when the regulations accompany this bill, the projects designated reviewable are going to be primarily in that category of environmental significance? When we say adverse effect, will it be primarily environmental, or will the minister be able to designate a project that would have significance, for example, on something outside of the

definitions included in the effects

section of this bill? Could the minister expand on that? This

section is different from other jurisdictions.

Hon. J. Cashore: You wouldn't be able to do it outside of the definition of effects, but effects does cover all aspects.

J. Tyabji: When the minister is determining public interest, what guidelines will help him determine that?

Hon. J. Cashore: I have answered that question.

J. Tyabji: I have been listening to this debate since it began today, and I have not heard an answer to that question. Let me be more specific. When the minister is defining public interest, will he be referring to best available control technology? Will he be referring to waste management guidelines? Will he be referring to some of the guidelines that we saw in the contaminated sites legislation? In what way will the minister be determining the public interest? Will there be a public hearing process that will be governed by regulation? Will it be in consultation with other levels of government? How will it be determined?

Hon. J. Cashore: I have answered that. It will be determined by the project committee, which is an

[ Page 8876 ]

independent process. I answered that in response to the question from the member for

Vancouver-Langara.

J. Tyabji: I did hear the minister's comment with regard to the project review committee. What I am trying to say is that the minister himself will be the person making the final determination of public interest. I know that in the backgrounder that B.C. Environment provided -- so that we would have some idea as to what would be a reviewable project or not -- there were a number of things listed. There is not much reference being made there with regard to whether it would be potential contamination, waste management or....

We have seen a number of businesses feel a little bit nervous about the project review process, because the goalposts change. I understand that the goalposts will change when technology brings forward better goalposts, and I don't have a problem with that. The problem is: by what process do the goalposts change? That is one question.

The second thing that I want to make clear.... At the opening of the debate the minister asked specifically if the Liberal opposition supported loopholes for businesses so that they wouldn't have to go through this process. As the minister is no doubt aware, the Liberal opposition was in fact calling for one process. It is not so much that some of the wording in this bill is a problem. As one of the previous members said, the

definitions section, which is integral to each

section of it, is not tight enough for us to feel comfortable with. The minister is saying "second reading"; it is not second reading. The minister himself asked specifically what our position was, and I am giving him the answer. The answer is no, we don't support loopholes. What we do support is a streamlined process, so people don't get so held up in this process that they give up. On this section, will the minister please answer the question with regard to the guidelines that he -- not the committee -- will be using?

D. Mitchell: For clarification,

section 3 of the act refers to the fact that the Lieutenant-Governor-in-Council will make regulations with respect to reviewable projects. Does

section 4 simply give the minister power to override those regulations? Is that how it would work, technically? Does the minister simply have the power here to override those regulations?

Hon. J. Cashore: No. Those projects are still subject to review. It is not an override power; it is a power to designate a project that could have impacts that need to be addressed.

D. Mitchell: Could the minister tell the committee whether or not

section 4 gives the minister power that is retroactive in any way?

Hon. J. Cashore: No.

D. Mitchell: During the review of

section 3, we had an interesting discussion about projects that might be government projects, as opposed to private ones -- public sector versus private sector. The minister responded about whether or not those projects would be treated differently in a review process, and about potential conflict of interest in terms of the government reviewing its own projects, whether they were of a line ministry, a Crown corporation or other public agency. Would the minister's power to designate a project as reviewable if it didn't fit into the guidelines apply equally to projects in the public and private sectors?

Hon. J. Cashore: Yes.

D. Mitchell: On that same question, I'm trying to imagine the government -- the minister -- designating a government project that didn't fit the guidelines as reviewable. I'm thinking, for instance, of B.C. 21, the recent initiative of this government, and the various projects that it has undertaken, and whether or not those projects, whether or not they fit the guidelines, would be reviewable as a matter of course. Does the government anticipate taking a stance on that kind of issue?

Hon. J. Cashore: It has to be a project under the definition of the act.

D. Mitchell: Yes, I understand that, but of course,

section 4 says that the minister will have the power even if the project isn't reviewable under the definition of the act. I guess I'm asking here, say with respect to B.C. 21, if those projects would be reviewable as a matter of course.

Hon. J. Cashore: If it's a project that has the potential to require assessment and it's not in the

definitions or in the regulations, then there is the potential that it could be brought in.

J. Tyabji: Since the minister wouldn't answer the previous question, the next question is: to what extent does

section 4 refer to Bill 42 with regard to the agricultural land reserve?

Hon. J. Cashore: It's a separate statute that stands alone.

J. Tyabji: We know that in Bill 42, there are significant references to Bill 32, and that in Bill 42 the minister can designate agricultural land reserve applications under Bill 32. Basically, Bill 42 is structured so that the Minister of Agriculture can take an Agricultural Land Commission application and put it under Bill 32. I'm asking if the Minister of Environment, in a reverse manner, can look into the Minister of Agriculture's portfolio and say that something there happens to constitute a reviewable project.

Hon. J. Cashore: It's not clear from this question how it pertains to

section 4.

J. Tyabji: Let me go through this for the minister. I'm assuming the minister is aware that there is a significant portion of Bill 42 that deals with the fact that

[ Page 8877 ]

although there are no appeals to cabinet for an application under the Agricultural Land Commission, the Minister of Agriculture can designate the application under the Environmental Assessment Act, Bill 32, in which case we see that there is a lot of.... The Minister of Agriculture can set the terms of reference for Bill 32 to come into effect, etc. So Bill 32 -- this bill -- has a significant impact on that. I'm asking if this minister could do the same thing.

Hon. J. Cashore: This question is way out of the category of this section; it's so far out, it's on another planet. That

section in Bill 42 deals with a process that has nothing to do with bringing projects into the environmental assessment process. It has to do with making use of the board to fulfil a function that relates to the purposes of Bill 42, so any of those references in Bill 42 have nothing to do with bringing projects into the environmental assessment process.

J. Tyabji: I'm not going to debate Bill 42; I think what it says is very clear. But let me rephrase the question. Could this minister look to parcels of agricultural land as reviewable projects? For example, if someone made an application to get their farm out of the land reserve, clearly that falls under "significant adverse effect," as effect is defined, "and that the designation is in the public interest," as the minister has not defined it.

Hon. J. Cashore: If it's not a project it's not subject to this act.

J. Tyabji: So the question is: does the minister believe that an application for a farm to come out of the land reserve would be considered a project? I'd be quite happy to hear the minister stand up and say: "I absolutely rule out an application to come out of the land reserve as being a project for the purpose of something else."

Hon. J. Cashore: No.

C. Serwa: I'm still wrestling with the purpose of this

section 4.

In reference to some of the comments the hon. minister made earlier about waterborne diseases, I want to ensure that the record is made correct. He was talking about beaver fever. Many of our municipalities and jurisdictions derive their fresh water supply from surface waters, and that's a problem throughout British Columbia. We call it beaver fever, but apparently that parasite is in other animals as well.

In trying to determine the purpose of

section 4, I think it would be fair to ask: would the minister consider, say, a highway project for designation as reviewable under this

section 4?

Hon. J. Cashore: Yes, I assume that a highway would be defined as a project and therefore would be on the list.

[3:45]

L. Fox: I've been listening with great interest to the debate on

section 4, as I did in

section 3. I'm trying to get clear in my mind about the minister's powers. It would appear to me that

section 3 allows the ministry or Lieutenant-Governor-in-Council through regulation, to categorize and list projects in regulation. If there are projects partially in process or not envisioned, it allows the minister to determine whether that project, or partially developed project, should be part of the review process; that's how I envision

section 4 working.

That brings the question to mind, then, of something that I think will raise its head throughout the province: landfill sites. It has been a very difficult issue in many jurisdictions throughout British Columbia. In fact, while parcels of land have been set aside around the province, by the Ministry of Lands in cooperation with the Ministry of Environment and the regional districts, up to now there has been a sensitivity to moving forward on developing those sites. But in this legislation the hint is coming through of causing some of those things to be moved forward, perhaps more rapidly than they might have been had this bill not come forward.

The approval process for landfill sites today is largely a regional district, not a Ministry of Environment, process. My question to the minister is: if these sites have gone through the regional district process but not been put into use by that jurisdiction, will the minister have, if the minister deems it in the best public interest, the authority, through the power in

section 4, to designate one or many of these projects as reviewable under clause 3?

Hon. J. Cashore: It's not retroactive, so it would not retroactively require a review of a landfill if a project had already been approved.

L. Fox: I ask the question because we talked in

section 3 about the difference between a project approval and a permit being issued. If the permit has been issued by the Minister of Environment, but the landfill site has not been utilized at this point, does the minister not see that he has the authority under clause 4, if it is in the public interest, to force this into a reviewable project category?

Hon. J. Cashore: If a permit has been issued, it would not be taken away under those circumstances. As I said, it's not retroactive. A project that has been permitted would proceed.

J. Tyabji: I was pursuing a line of questioning with regard to

section 4 and how it relates to applications to pull land out of the land reserve, and the minister said it does if it is a project. As we know, in Bill 32 a project means "any existing or proposed construction, operation, modification, dismantling or abandonment in relation to a physical work." I'm not sure what that means. But in the Minister of Environment's own handout, the backgrounder to this bill, we see that under "agricultural projects," agriculture is largely regulated through the application of codes of practice. It says that thresholds will have to be established in

[ Page 8878 ]

consultation with the agricultural industry -- thresholds for regulation of the agricultural industry under Bill 32. It lists projects that are proposed for inclusion. So we see very clearly that agriculture is one of the major components of this bill. Is an application for removal of an agricultural parcel, where the intent is to remove an operational farm and perhaps move to a different use of the land -- whether that be a golf course, a business site, a commercial site or a subdivision -- a reviewable project under this bill?

Hon. J. Cashore: The removal of land from the agricultural land reserve is not subject to Bill 32 in any way, shape or form. If land was removed and there was a golf course, for instance, and that was defined as a project, then it would be subject to Bill 32.

A. Cowie:

Section 4 says that the minister may designate a project as reviewable if the minister feels that there is a significant adverse effect on the public. My concern here is that just by the wording of that section, the ministry, by bringing it into the review stage, has indicated that it will probably be a problem and therefore prejudices the project. It would seem to me that all projects should have to go through a preliminary review, and then some will go on to a more detailed review. This indicates -- to me, anyway -- that anything that is reviewed would automatically be seen in a, so to speak, toxic way.

Hon. J. Cashore: That is a very interesting suggestion. I find it really inconsistent with the kind of comments I've heard from other opposition members. Given the gist of the questions from the opposition and given my own thoughts, I can't imagine anybody wanting us to require virtually every project to go through this process. If we were to decide that every project that comes down in British Columbia go through this process, that would be doing the exact thing about which concern is being expressed under this section. I just don't see that as being a starter whatsoever.

A. Cowie: My concern is that if a project goes into the review process, an apparent prejudice has been identified in that there is a concern. If one is following a planning process, which any municipality or regional district uses, there is a comment by the authorities that basically says: "We have had an overview of this particular project, and it would appear there is no concern." In other words, it goes through a very thin overview that automatically says yes, it's okay -- it can proceed. In this particular case, it seems that there is prejudice that automatically condemns it. However, I want to use that information in order to ask another question.

I've gone on to look at other sections.

Section 8 seems to be a logical way of going through a review. I've looked at it; it's pretty standard; it's the way they've done it in Alberta for years. It has been proposed.... In fact, many companies do it. In the GVRD, for instance, an environmental study was done on the various proposals for SkyTrain and commuter rail service from Vancouver to Surrey some years ago. Cultural and heritage aspects were all looked at. It was a big project, and they automatically looked at. The Greater Vancouver Regional District looked at that and made some decisions.

Ultimately, the responsibility for that project was with Transportation and Highways, the province. A decision was made, and that was all put aside -- but with no analysis, or hardly any, anyway. It was sort of: "Well, we'll pick this one; it's seems to be the best for various reasons."

I think the minister is going in the right direction in requiring of all these things. It's just the amount of time and the depth. In this particular case, let's suppose the regional district had the authority to proceed and the provincial government was supporting it. Would the minister come in and demand an environmental assessment as outlined here, or would the minister allow the GVRD to undertake its own process and go to the public?

Hon. J. Cashore: If it was in the regulations, we would do it. There will be a process of consultation to decide what will be included in the regulations. If through that process it ends up in the regulations, then yes, it would be assessed through this process.

A. Cowie: I've been involved with a number of these over the years. For instance, the Ministry of Transportation and Highways did a social, economic and environmental impact study on the Alex Fraser Bridge. I can tell you that they spent $30,000, which wasn't a lot of money. In fact, it wasn't enough to hardly look at anything; it was a PR job more than anything else. A valiant attempt was made to do those assessments. They had made a political decision to go through there anyway; it was a matter of identifying the major problems and trying to placate the citizens. They did a reasonably good job, and I happen to think that was a good project.

But where does the minister cut off? When does the minister decide to come in on a project like that and when does he decide to stay out of it? With these urban projects, there is no rationale in many cases. It's primarily a political decision. We need a route, and we're going to put it through there. What is the impact? It seems to me that if the Ministry of Environment comes in, it's just going to mess it all up. It's going to take two or three years and a whole set of rules. What I'm saying is that it's difficult enough as it is to get some projects through.

Hon. J. Cashore: I had a meeting with the environmental committee of the UBCM today, and they felt that the processes outlined in this bill were good. They had some questions, but they certainly felt that this was a good bill.

As I understand it, I think the question is somewhat more far-ranging than

section 4. On the contrary, hon. member, if something is defined as a reviewable project, this will be the coordinating process that will ensure a single-window approach and avoid duplication. The GVRD and the municipalities would all be in on the ground floor of the way in which that process would be

[ Page 8879 ]

carried out. They would be involved, and it would be coordinated through this process.

A. Cowie: Now we're getting to the strength of it all, and I get back to my original question, which was: if you're dealing with large projects, every project has to at least go into some kind of preliminary review or else it's going to be which ones are and which ones aren't.

It would seem to me that with any project that's going to spend half a billion or a quarter of a billion dollars -- it's going to go across the Fraser River, or it's going to have a number of environmental impacts, or it's going to go through an urban area that at one time had some kind of aboriginal heritage or whatever -- somebody's going to stand up and say: "This is a very important aspect, and we the citizens demand that a proper environmental assessment be done." It would seem to me better for the province to say: "These are the rules that are going to be in; these are the ones that we're not going to do." Otherwise, every little project is going to have to go through some kind of review.

We know a lot of single-interest citizen groups are going to come in and say: "This requires a proper provincewide environmental review." Then we're going to have to do it all over again and there will be further delays. It might be pointed out in the beginning that there's a major problem and it shouldn't go ahead -- fair enough. But I think there have to be some rules of what's in and what's out. It just can't be as loose as it is right now.

[4:00]

Hon. J. Cashore: That point is very well taken. That's part of the regulation process, and I would really invite the hon. member to participate in that process so that we do have good

definitions. His experience would obviously be very valuable in that regard.

L. Fox: In asking this question, I want to appeal to the Chair: it's a bit far-reaching, but it relates directly to the question I asked the minister earlier. The minister suggested that if a landfill site had achieved a permit it wouldn't be a reviewable project, which begs me to follow up with a further question that makes sense in terms of that answer. In the interim, if there are applications for landfill sites now before the ministry, is the process going to continue the way it has until such time as this bill is proclaimed as legislation?

Hon. J. Cashore: That's a good question. It's not a

section 4 question, but the answer is yes, and there is process in the legislation to ensure a smooth transition.

K. Jones: Upon a public complaint being made about a pig farm that's causing a lot of smell for a wide area or a primary mushroom processing plant which is also creating a lot of smell, would this

section allow evaluation?

Hon. J. Cashore: If I understand the question, the answer is absolutely not. That would be subject to other legislation, such as the Waste Management Act.

K. Jones: I'm also asked by the critic to inform the minister that under Bill 42, the amendment to

section 5 says:

"By these new provisions, if the Lieutenant Governor in Council considers it to be in the Provincial interest, the Lieutenant Governor in Council may require that a proceeding concerning the use of land that has been started under the Agricultural Land Commission Act (and so is before the Agricultural Land Commission for a decision), be referred for a review."

I believe that is contrary to the response that you gave to her question earlier.

Hon. J. Cashore: On the contrary, that is absolutely consistent with the response I gave. It is to be referred to the board for a review. In other words, it does not come through the entire environmental assessment process. It goes that one step for a review, and that is very limited in terms of the scope of Bill 32.

C. Serwa: I would assume that the minister would initiate, under

section 4, something with respect to public interest based on the amount of concern voiced by the general public. That appears to be the foundation for

section 4: the public accesses the minister, and the minister determines that an environmental happening in industry or a project, etc., should be considered reviewable. For my information, if there's a conflict between the environmental assessment review and the forest practices code, would the minister step in at that time and identify it as a reviewable project under this

section 4?

Hon. J. Cashore: Forest practice would be defined as an activity, and insofar as it would be subject to the code, we would only be addressing projects that are defined as projects. So it would have to be defined as a project in the regulations that go with this.

C. Serwa: Under

section 4 it would have to be a specific forestry practice, not a specific forest-related practice carried on by one company. I'm aware of the environmental concerns of

section 4, but just for my clarification, if a contentious forest practice comes through, which is carried on by one firm -- say a logging contractor -- would that not be classified as a reviewable project under

section 4 if it's brought to the minister's attention and he is aware of the specific concern and the validity of the concern?

Hon. J. Cashore: The answer is no.

J. Tyabji: I've been trying to get an answer from the minister with regard to the reference to agricultural land, and we've ended up looking even at sections in Bill 42 where we see very clearly that an agricultural parcel that comes up before the Agricultural Land Commission may be referred for review under Bill 32. We've even looked at the backgrounder here that lists agricultural projects as projects that may be reviewable projects at the minister's discretion. There may actually be agricultural projects that would be open for regulation.... So we can get past this section, I would like to get from the minister some idea of where his

[ Page 8880 ]

discretion will come in. I know he's going to talk about the committee. But I'm not interested in the committee so much, because that's so nebulous that we can't possible debate what the committee might determine. What we can do is look to this minister for his discretionary guidelines in determining what is

reviewable.

There are two questions that I'd like to have answered, and really these are the questions that I've been trying to get an answer from since I stood up. The first is: will new technology be one of the determinants in the minister choosing to find a project reviewable when it is not under regulation? The second one is: will a project that is actually an Agricultural Land Commission application be one of the areas where the minister will see fit to exercise his discretion under

section 4?

Hon. J. Cashore: If new technology is to be involved, it would have to be part of a reviewable project.

With regard to the reference to Bill 42, again, I answered the question while the hon. member was out of the House; it was asked by her colleague. Just while she is here, the answer that I gave was correct. It would not have the effect of bringing it into the Environmental Assessment Act as a reviewable project, but it would be brought to the board to ask that board to perform a particular function.

Section 4 approved on the following division:

YEAS -- 32

Petter

Perry

Marzari

Priddy

Cashore

Jackson

Beattie

Schreck

Lortie

Hammell

Lali

Giesbrecht

Conroy

Evans

Farnworth

Pullinger

Lovick

Copping

B. Jones

MacPhail

Blencoe

Zirnhelt

Cull

Smallwood

Miller

Dosanjh

O'Neill

Hartley

Krog

Randall

Kasper

Brewin

NAYS -- 20

Chisholm

Cowie

Reid

Gingell

Dalton

Farrell-Collins

Wilson

Stephens

Hanson

Weisgerber

Serwa

Fox

Symons

Tanner

Hurd

Warnke

Anderson

Jarvis

K. Jones

Tyabji

section 5.

[4:15]

G. Wilson: With respect to

section 5, there are a number of words here that we would like some clarification on. The intent of this bill is clear on this side of the House with respect to the environmental assessment process. We understand that if we are going to review a project prior to commencement or construction, that is something this government may wish to rule on. But this says: "Despite any other enactment...." That gives us some cause to question. What are we talking about here? Then it says that the owner or operator or applicant may not abandon or dismantle or modify a reviewable project.

Given the loose definition of this concept of reviewable project, can the minister tell us whether or not he expects this bill to apply to existing operators in existing businesses that would seek to modify, and through the modification of that business, find themselves under a classification of reviewable projects? Would they be denied doing so as a result of a lack of permit, despite the fact that a permit was not warranted or requested in the initial investment of that business?

Hon. J. Cashore: In terms of a previously approved project or an existing project, the answer is no.

G. Wilson: This

section seems redundant, in that case. If it indeed says "despite any other enactment," one assumes that there is a previous permit in place, or some form of licence, title, deed or some legal entity that now exists.

Perhaps we could use as an example an operating fish farm, which may be a reviewable project. If we were to use that, and we looked at the operator requiring modification of that farm because of pollutant or effluent problems, or new technologies that may assist in some aspect of that operation, that clearly is a reviewable project. Does it mean that the individual is now going to have to become a certificate holder every time that person wishes to modify, change or in some way alter the way they are doing business? If not, what does it mean when you say "despite any other enactment" -- that you can't modify your operating business?

Hon. J. Cashore: It would only come into effect if it was defined in the regulation. The hon. member refers to an existing business as an example. One pretty major existing business would be a pulp mill that might be planning an expansion. That would presumably be defined in the regulation. In that instance, if I understand the question, the answer would be yes. But the fact is that in the vast majority of cases, the answer would be no, because it wouldn't be defined as a reviewable project.

The purpose of the

section is very clearly that to proceed with a project or with the dismantling of a project, the proponent must be in possession of a project approval certificate.

D. Mitchell: I am following up on the question from the member for Powell River-Sunshine Coast. When we were dealing with the previous section, I asked the minister if there was any retroactivity contemplated with respect to his power to designate. The minister is saying that in the vast majority of cases, this would apply only to future projects. If the minister will recall, back when we had a very stimulating debate

[ Page 8881 ]

on the

interpretation

section of this bill, it was very clear that there were now going to be two categories of projects in the province of British Columbia -- pre-Bill 32 and post-Bill 32. But the minister is now saying that there may perhaps be some retroactivity here. At least, that's what I hear him saying when it relates to

section 5, which we're dealing with now. The issuance of a project approval certificate is what this relates to. While that certificate is mentioned in more detail in other sections, which we will deal with later on in this bill, the minister is really talking about reviewable projects which, despite any other enactment, relate to developers or operators who may be existing, previously approved or currently under-operating. Could the minister just clarify what is anticipated with this section, and why it is required?

Hon. J. Cashore: I did answer that question. I said at the conclusion of my response to the question by the member for Powell River-Sunshine Coast why it is required. In order to proceed with a project or with the dismantling of a project, a project certificate is required.

I want to say for the record that I did not say there was some retroactivity creeping in here.

In order to answer the other aspects of the member's question, it would have to be defined in the

definitions, which we will all have input into during the drafting of the regulation phase over the next year. It would have to include a project that is defined as a reviewable project.

D. Mitchell: I appreciate the minister's clarification on that, and I am sure that many British Columbians will want to hold the government to the fact that there will be no retroactivity in the issuance of project approval certificates.

The minister says that this

section is required because project approval certificates have to be issued by the minister's office. There are several sections of the bill that refer to project approval certificates. If the minister is saying that the primary purpose of this

section is to give the minister the authority to issue a project approval certificate, can the minister tell us what safeguards there are to prevent the minister from unnecessarily delaying the issuance of project approval certificates?

Hon. J. Cashore: This

section doesn't give the minister the authority; it requires that the proponent have the authority.

D. Mitchell: There are several sections in this bill, which I won't go into now because we'll be dealing with them later, that deal specifically with that authority for project approval certificates. But this

section seems to be dealing with a prohibition against proceeding without any approval. It seems to be self-evident. Is there some specific legal advice that the minister can refer to that was tendered in the drafting of this bill that said such a

section was actually required? It is already referred to and implied in several sections later on in the bill. Why is this

section required here?

Hon. J. Cashore: I heard the comment that this

section is redundant. It seems to me that the hon. member is right: it is self-evident. I would agree with that. Legislative counsel -- professionally trained people who advise us with regard to such matters -- tell us that this is required when you are dealing with a project that may be proceeding without the proponent having a certificate. The operative requirement is that they are able to produce the project certificate.

J. Tyabji: The member for West Vancouver-Garibaldi keeps talking about retroactivity, and I want to get some clarification from the minister about my reading of the bill and the semantics involved. We see in

section 5: "Despite any other enactment, a person must not construct, operate, modify, dismantle or abandon a reviewable project except in accordance with a project approval certificate that remains in effect...." When we look at the definition of project we see that it means any existing or proposed construction, operation, modification, dismantling, etc. When we're talking about retroactivity, it seems to me that if you have an existing project, for example a mine.... We know that in

section 4 the minister has full discretion, outside of the regulations, to deem any project reviewable, so any existing operation can be deemed reviewable by this minister. It then falls under the review process and then under

section 5, saying that it must not be constructed, operated, modified, dismantled or abandoned, "except in accordance with a project approval certificate...." It seems to me that if there is a project somewhere that is already operating and the minister designates it a reviewable project for the purposes of this act and it has to go through this process, that's a form of retroactivity. Those are the kinds of semantics we're talking about. Could the minister please clarify that?

Hon. J. Cashore: It would have to be defined in the regulations as a reviewable project.

J. Tyabji: In

section 4 we see -- even outside the regulations -- that the minister may deem a project reviewable. Is the minister saying that

section 5 applies to all projects except those that come under

section 4?

Hon. J. Cashore: It has to be consistent with the definition of reviewable project in the

interpretation section, which we canvassed extensively in

section 1.

J. Tyabji: I understand that it has to come under the

definitions in the

interpretation section. In fact, we talked about that; that's why I read it into the record a couple of minutes ago. The point is: do we have a scenario under

section 5 where an operating mine -- that the minister, for the reasons listed under

section 4, has deemed in the public interest to make reviewable -- can no longer operate outside the project approval certificate? In effect, it is being retroactively regulated.

Hon. J. Cashore: An operating mine would have a mine development certificate. It's very clear that that project would not be subject to this process.

[ Page 8882 ]

D. Mitchell: Mr. Chairman, I've been listening with some interest to the exchange between the minister and the member for Okanagan East. The minister earlier on gave an unequivocal answer to a question I raised about retroactivity. He stated that there would be no retroactivity. He stated very simply: "The answer is no." But now I'm listening to his exchange with the member for Okanagan East. I'm hearing him say that, subject to the definition of project that the Lieutenant-Governor-in-Council agrees to by regulation, perhaps there might be some retroactivity.

Could the minister please clarify this for the committee once and for all? I'm growing increasingly confused with this minister's answers to this committee.

Hon. J. Cashore: It would have to be a new project. We did have the question a little while ago, which the hon. member for Powell River-Sunshine Coast raised, about an existing business or project going through an expansion, for instance. In that case, it could well fit into the definition, because the original project is changing substantially.

D. Mitchell:

Section 5, which we're reviewing in this committee right now, refers to projects that might be dismantled. For instance, a sawmill that had been operating under a number of permits issued by the Ministry of Environment is closed down permanently and is now going to be dismantled. In order to dismantle the physical structure, the plant, a permit might be required under this new environmental review process, and a project approval certificate would be required for that purpose. Under a circumstance like that, with the dismantling of an industrial project, is there going to be any retroactivity for the owner or operator of the sawmill, who might be out of business by that point?

[4:30]

Hon. J. Cashore: If it was defined as a reviewable project, it could be included. In other words, there could be an environmental concern with regard to the circumstances around the dismantling of the project. But unless it was defined as one in the regulations, it would not necessarily be a reviewable project. Let me give you an example. Suppose there is dam and there are questions about dismantling it. I would think that that would be defined. It would be in the interests of all of us to define that as a project that requires a certificate, because of the necessity of ensuring that it is done in a way that is safe for people living in the area.

D. Mitchell: As I listen to the minister's responses to questions in this committee today, I grow increasingly concerned. When we debated the

interpretation

section of this bill, we asked specifically about the parameters of the bill. In response to a specific question at that time, the minister gave me a clear impression that all projects in this province are now going to be pre-Bill 32 -- projects prior to the passage of this bill -- or post-Bill 32. There would be a clean cut and two categories of projects in this province. But now I'm getting a distinctly different impression.

The reason I ask about retroactivity is that it is extremely important, to anyone who operates a business in this province, to know if the long arm of the government is going to be able to reach back into the past with a new assessment process that could be extremely expensive and arbitrary. When we asked the minister today about retroactivity on

section 4, the minister said: no retroactivity. When we initially asked him about

section 5 in terms of retroactivity for project approval certificates, the minister said: no. But upon further questioning, he's now saying not necessarily, but perhaps. I grow increasingly confused, and I think many British Columbians will be confused, as to whether or not the project approval certificate -- which is finally going to be issued by his office when this bill becomes law -- is going to apply to conditions, circumstances or liabilities in the past. It's not clear at all, by any means. So I ask the minister one more time to clarify that.

Hon. J. Cashore: It is entirely clear. I believe the hon. member knows it's clear. If it was not clear to the hon. member, then I think he should refer to the example I gave. Say, for instance, a dam was built prior to when this act comes into effect. Does the hon. member honestly believe that the project of dismantling a dam, just as one example, should not be subject to environmental assessment? Is that what the hon. member is saying? If that is not what the hon. member is saying, then I think it behooves the hon. member to recognize that in some instances when we are defining projects....

We should recognize that the dismantling of a dam is indeed a project. That is not at all inconsistent with anything that has been said. It is a project that could result in environmental impacts and, in most instances, should be included in the projects identified in the regulations.

You can come up with other examples, but again it should be something where the

definitions cover that. For instance, the process of dismantling a pulp mill that might result in the release of leachate into a water body is a project in itself. It's certainly a project if it becomes defined as a project. Not in any way, shape or form is that retroactive. That is simply recognizing that we as a body politic -- and the process in which we define those regulations which then become regulations -- decide the kinds of projects that need to be defined in order to protect the public interest.

D. Mitchell: I don't want to get into a semantics debate with this minister about the word "retroactivity." But I think he has finally agreed that aspects of this bill will reach into the past.

Hon. J. Cashore: If you're dismantling, of course.

D. Mitchell: They will, whether we use the example of a dam, a sawmill or what have you. Using the powers of the minister to issue a project approval certificate under

section 5, the question is: can the minister tell the committee what would happen in the event of an application to dismantle an industrial facility -- say a dam or pulp mill, as he said, or a

[ Page 8883 ]

sawmill -- coming forward and being subject to the environmental review process, but the business is out of business? Let's say the business was no longer there. How would the project approval certificate be issued? Who would be liable for the terms of the project approval certificate under those circumstances?

[H. Giesbrecht in the chair.]

Hon. J. Cashore: There would have to be a proponent.

G. Wilson: To pick up on the questioning of my two colleagues here, maybe we could sort out some time lines or trigger mechanisms here for our clarification. You were talking about dismantling a project. We are talking about dismantling a project, so clearly there is an existing business. When you decide that you are going to dismantle this business, you may have to apply for a permit. How do you know that? In other words, at what point do you see whether what you propose to do falls under a reviewable project? With respect to the enactment procedure under

section 5, you may have permits to operate, for example, under the existing bylaws of a particular jurisdiction. If you intend to dismantle it, at what point can this law supersede the others? I guess that is what

section 5 does, effectively. Therefore we have to know when you go and find out whether or not you can do this through this process. Who makes the decision as to how that is going to happen, and through which process. Does it tie back to what we saw in the earlier section? When does all this take place -- at the point that they want to do it?

Hon. J. Cashore: It would be clearly defined in the regulations under what circumstances demolition projects are required to be brought into the review. The answers to those questions about timing are subject to the sections of the statute that relate to those different functions.

G. Wilson: Because he has spent a fair bit of time on the opposition benches and has had quite a bit of experience in this House, I think the hon. minister can understand how concerned the opposition is when we hear: "It is all going to be set out in regulations. These legitimate questions you have are going to be determined at some future date, and we will deal with those when the regulations come down." The difficulty is very much like walking into a car dealership and looking at the body and the interior of an automobile and saying: "Yes, this looks pretty nice.

What size engine does it have?" The salesman says: "We will determine that after you buy the vehicle. Buy the vehicle, and we will determine whether it is four, six or eight cylinders. We will determine whether or not it gets ten litres or something more to the kilometre." That is the difficulty we have with this bill.

We also recognize that this bill talks about the abandonment of a project. When is a project determined to be abandoned? If a person intends to abandon a project, then what on earth would make them want to get an approval certificate for it? Why would a person not just walk away? There are abandoned fish farms all up and down the coast, for example, which are an environmental hazard; they are a problem. Cleanup of some of the leftover effluent is bad news. These people are long gone; they didn't wait around to find out if they needed a permit or a certificate.

At what point is a project determined to be abandoned? When it is, in what way is some kind of approval certificate going to capture those people who would just walk away from a loss?

Hon. J. Cashore: There is a legal requirement with regard to a fish farm, for example, that they have the proper certification before they proceed with that type of activity. I would think that the example of a sea farm is a case in point. It is a potential abandonment that could be harmful to the environment if it is not done in an appropriate way.

G. Wilson: The difficulty is that the fish are gone, the net pens are there and the proponents have simply up and left. They just walk away from it. Abandonment is abandonment. Abandonment of all kinds of projects happens on a month-by-month or year-by-year basis if there is no profit or benefit. How do you capture an abandonment under this certificate? It says that you need the approval certificate to do that. In what way would the person be in violation of

section 5, and if they are -- and indeed, the law would say they are -- how do you go after them?

Hon. J. Cashore: You would turn to the courts to enforce the provisions of the legislation.

G. Wilson: This is my last question on

section 5. I really believe, with all due respect, that this is a totally redundant section. I don't understand its inclusion. By implication, if you need a certificate, you can't have an approval to do something unless you have one.

The language here says that you can't modify. Under Bill 42, we know that the change in status of agricultural land is going to heard through the proposition that is being put forward in Bill 32. We canvassed that in that bill fairly extensively. We know that what is set up under Bill 32 is going to dramatically affect agricultural land and modification change of that status. Could the minister tell us whether or not -- for a person who owns agricultural land and intends to modify its use, whether it's within the agricultural land

section or not -- that modification is going to have to first be subject to an approval certificate under

section 5 of this act as well as anything he or she may have to do with the ALR?

Hon. J. Cashore: It would have to be identified in regulation as a modification of a reviewable project.

G. Wilson: With all due respect to the minister, that is a totally unsatisfactory answer. We have absolutely no idea of what's in the head of this minister or those who help this minister put those regulations together, as to what would constitute those regulations. What we

[ Page 8884 ]

are really being asked to do here is approve a blank cheque.

Hon. J. Cashore: I just want to point out that recently this hon. member stood up in this House and read a

section of the Alberta environment act, and suggested that in actual fact the environmental assessment act in Alberta lists reviewable projects. It does not. The

section the hon. member read was very similar to a

section within this bill which we will be coming to later on. I will point it out at that time. The hon. member did not list a set of reviewable projects that are outlined in legislation in Alberta; he read out a list of circumstances in that province under which those

definitions would be developed. We have a similar section. We will be reading that similar

section and pointing out that, contrary to what this hon. member said in the previous debate, there is absolute similarity -- I won't say absolute verbal identity -- between the Alberta act and this act, which is what I have contended all along.

G. Wilson: I don't know what that had to do with an answer to my question. In fact, I don't think it had anything to do with it at all. I'll be happy to debate with this minister when we get to that section. Having thoroughly studied the various acts in the various jurisdictions, I have never implied that they had a reviewable project stipulated in their legislation. I haven't implied it, nor have I suggested it, because this is new legislation.

What we are being asked to do here is approve a piece of legislation which the minister tells us is going to be virtually given all of its beef -- all the actual formulation of its power -- through regulations that will happen through order-in-council without any debate in this House or any input from the public.

[4:45]

We also heard from this minister -- and I'm sure he will have his chance to respond -- that this bill is not going to be put into force by regulation for at least another six months or so. Given the complexity of it and the ambiguity of its language -- and I'm being kind when I say the language is ambiguous -- and the fact that it isn't going to come into effect for six months, the government should pull this from the order paper now. Let us spend the six months tightening up this language and bringing some regulations down so we can see what's going on.

Let us get on with the other business of this House and work on bills that are in fact properly constructed and ready to go, instead of wasting time on trying to pick the minister's brain as to what he may or may not have in mind for some regulations.

Hon. J. Cashore: We need the bill in order to inform the process that would lead to the development of the regulations. We need the bill in effect at the end of the time period in which the regulations are developed, which would be close to a year, in order to fulfil the equivalency provisions with the federal environmental assessment act. We need to do this so we don't get whipsawed in British Columbia and have our resource development directed by the federal government, when we need to be in the driver's seat on that issue.

The hon. member read from the Alberta act, responding to a point I had made that we were going to be answering the question of reviewable projects in regulation. I'm simply making the point that where he had implied there was an inconsistency between ourselves and Alberta, there is no such inconsistency. Alberta, Saskatchewan, Ontario and other jurisdictions in the Maritimes also define reviewable projects by regulation. That's the only point I was making. In other words, this hon. member stands up and says that we don't have the answers that would come from the regulation

definitions at the present time. My answer is that this is not inconsistent with what happens in other legislation. But one thing of interest is that this is the last major province to bring in environmental assessment legislation, and the process that is taking place in this province has involved far more consultation than in any other jurisdiction in Canada. I believe it's going to be the very best legislation in Canada.

G. Wilson: Since the minister has raised this question, could the minister tell me where in the Alberta act does it talk about an environmental assessment act being looked at for a reviewable project, which includes economic conditions, social conditions, cultural conditions and heritage conditions in an omnibus kind of definition of reviewable projects? Maybe he could also point out where all those social, economic, cultural and heritage

definitions are included in that act, and where it stipulates that there is a widespread power given to a single appointed minister or minister's designate with respect to the assignment and assessment of it. I have chosen Alberta, because that is probably the strongest and most detailed bill in any of the jurisdictions across the country. If we want to debate the Alberta legislation -- which in my judgment is a colossal waste of this House's time -- I'd be happy to do that. But before he embarks on that debate, I hope he will answer those questions so that I can come back and point out the complete opposite in terms of approach.

Perhaps he can come back and answer the question I put to him with respect to the Agricultural Land Commission and the implication of

section 5 with respect to the modification or a change in operation of land that is under the ALR. They are going to have to undergo a public hearing process, which will be defined under Bill 32, to change the status from agricultural land to what it may be deemed to be desirable for economic benefit to the individual who owns the land, whether it's in the agricultural sector or not. Does the modification of the land under

section 5 apply? Yes or no.

Hon. J. Cashore: The answer is no. I answered that question about half an hour ago. If the hon. member had been listening, he would have been very aware of that. The

section in the Alberta environmental assessment act is

section 38(c): "to predict the environmental, social, economic and cultural consequences...."

[ Page 8885 ]

The Chair: The Chair would remind hon. members that we are dealing with

section 5, and he is very anxious to get the discussion back to

section 5. Please address remarks through the Chair.

G. Wilson: I'd be happy to do that, hon. Chair. As I say, if this minister wants to debate the Alberta and B.C. legislation in parallel, I would be happy to do that. I have all of that material with me, and we can certainly debate it in parallel, which will be a colossal waste of this House's time. Nevertheless, if the minister is insistent on doing that, I certainly have the time.

I come back to the minister saying that the answer is no. I wonder if the minister could square that with the Attorney General's comments in debate a couple of evenings ago, when we talked about Bill 42 and the implication of Bill 42 with respect to this language. We are of the understanding that there will be such a public hearing process, and that the public hearing process will, in the words of the Attorney General, "be referred to in this act." If there is a prohibition against proceeding without approval under

section 5, I am curious to know why that is so.

Hon. J. Cashore: This hon. member is again putting us back into debating another bill that was heard in this House. The use is of the board that is created through the Environment Assessment Act to conduct a public hearing. They would be using that board, because government did not want to create yet another instrument when it was felt that it could make use of that one.

G. Wilson: I know what the reason is. My question is: if they're going to use the existing process, why would that board not want to modify or look at the modification of a proposal under

section 5 prior to a permit to change land use? It isn't that they're going to use it; I know they're going to use it. The Attorney General was very specific with respect to how Bill 42 and Bill 32 are tied together. There is no dispute there. The question is whether

section 5, prohibition against proceeding without approval, would apply to agricultural land, given that that may change the land status.

Hon. J. Cashore: No, hon. Chair.

J. Tyabji: Earlier the minister said that in the event of someone not meeting with the conditions of

section 5 -- that a person must not construct, operate, modify, dismantle or abandon -- the member for Powell River-Sunshine Coast and some of the other members talked about some of the projects that might be reviewable or might come under this

section -- for example, an abandoned fish farm. In the event of a fish farm being abandoned, the minister said that the avenue for the government to pursue the person who abandons that project would be the courts. I am a little confused, because the minister