2015 Legislative Session: Fourth Session, 40th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

official report of

Debates of the Legislative Assembly

(hansard)

Thursday, March 5, 2015

Afternoon Sitting

Volume 21, Number

ISSN 0709-1281 (Print)

ISSN 1499-2175 (Online)

CONTENTS

Page

Routine Business

Introduction and

First Reading of Bills

Bill M209 — Lobbyist Registry Reform Act, 2015

L. Krog

Orders of the Day

Committee of the Whole House

Bill 3 — Building Act (continued)

D. Eby

Hon. R. Coleman

Reporting of Bills

Bill 3 — Building Act

Third Reading of Bills

Bill 3 — Building Act

Committee of the Whole House

Bill 12 — Federal Port Development Act

B. Ralston

Hon. R. Coleman

A. Weaver

V. Huntington

D. Donaldson

Report and

Third Reading of Bills

Bill 12 — Federal Port Development Act

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Forests, Lands and Natural Resource Operations (continued)

Hon. S. Thomson

B. Routley

H. Bains

D. Routley

C. Trevena

[ Page 6445 ]

THURSDAY, MARCH 5, 2015

The House met at 1:33 p.m.

[Madame Speaker in the chair.]

Routine Business

Introduction and

First Reading of Bills

BILL M209 — LOBBYIST REGISTRY

REFORM ACT, 2015

L. Krog presented a bill intituled Lobbyist Registry Reform Act, 2015.

L. Krog: I move introduction of the Lobbyist Registry Reform Act for first reading.

Motion approved.

L. Krog: I am pleased to introduce this bill, which amends the Lobbyists Registration Act. This bill makes several targeted improvements to the openness and the transparency of B.C.’s lobbyists registry system and rules directing the lobbying in this province.

A key accomplishment of this bill is that it creates an outright ban on public organizations using public funds to lobby the government. When public sector bodies — such as universities and other bodies having a government-appointed board of directors and paid for by taxpayer dollars — need to talk to the government, they should not be spending scarce public dollars on lobbyists. These organizations should be able to pick up the phone and talk directly to the minister.

This bill also calls for a cooling-off period for former public office holders and their ministerial staff before they can start lobbying, establishing that 24 months must pass before ministers, deputy ministers and other senior staff, including political staff, can start lobbying their former colleagues after leaving office.

By having a period of 24 months between when the officeholder leaves their position and when they begin to lobby, it limits the opportunity for the former public office holder to unfairly benefit from their former position and from exercising undue influence on current policy development. This time frame would bring the Lobbyists Registration Act in line with the Members’ Conflict of Interest Act.

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Other changes in this bill reflect recommendations made by the Office of the Information and Privacy Commissioner in her 2013 report. The bill follows the recommendation which makes more transparent the nature of the lobby undertaking and the information included in filed returns.

Sometimes undisclosed third parties are involved in the process of lobbying. This bill would ensure that all interested parties are known to the public and would increase the overall transparency of the lobbying undertaking. This bill also calls for a review of the lobbying act every five years.

I move that this bill be placed on the orders of the day for second reading at the next sitting after today.

Bill M209, Lobbyist Registry Reform Act, 2015, introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

B. Ralston: I seek leave to make an introduction.

Leave granted.

Introductions by Members

B. Ralston: On behalf of my colleague from Burnaby-Lougheed, I’d like to welcome 55 students who are visiting today — they’re in the precinct — from Westridge Elementary School in Burnaby. They’re accompanied by their teachers Mr. Lai and Mr. Fraser. Would the House please make them welcome.

Orders of the Day

Hon. M. Polak: In this chamber I call continued third reading debate on Bill 3. In Committee A I call continued estimates debate on the Ministry of Forests, Lands and Natural Resource Operations.

Madame Speaker: Committee stage debate.

Hon. M. Polak: Sorry. I apologize. Committee stage debate.

Committee of the Whole House

BILL 3 — BUILDING ACT

(continued)

The House in Committee of the Whole (Section

B) on Bill 3; R. Chouhan in the chair.

The committee met at 1:38 p.m.

Sections 12 and 13 approved.

section 14.

D. Eby: This

section deals with an administrative agreement entered into by the minister. I wonder if the

[ Page 6446 ]

minister could provide an overview of the intention of what will be accomplished by this

section and the agreements contemplated by it.

Hon. R. Coleman: Happy to. Basically, it enables a body outside of government to administer the provincial qualification requirements for building officials and to maintain the register of qualified building officials under administrative agreement.

The ministry intends to delegate the administration of the new building official qualifications to the Building Officials Association of British Columbia. This established organization, incorporated under the Building Officials’ Association Act, currently does develop and administer exams and continued professional development as well as its own voluntary building official certification program. This enables us to get into that administrative agreement. It would become the body that would take care of the ongoing qualifications and the new qualifications for building officials.

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D. Eby: What will the access be that the public has to this agreement? There are a number of important provisions: right of access to records, requirements for records management and indemnification, settlement of disputes. Will this be a public document, available to everybody, or is this contemplated to be a confidential document?

Hon. R. Coleman: These are public documents that enumerate the agreements. It’s basically mutually agreed upon. We already have delegated specific provisions to the person who’s within the organization. We delegate that through to the building association given the delegation provisions under this act.

Basically, mutually agreed upon amendments to the agreement would be authorized by the minister as needed. Any unilateral amendments to the minister are addressed in section (5). With these organizations it’s usually with consultation — where they need some amendment which the minister approves, and we have to do it through the formal process.

D. Eby: I apologize to the minister if I missed it. Will the agreement itself, amended or otherwise…? Is it a public document?

The minister nodded yes, Mr. Chair. I don’t need to ask that again. I have no further questions on this section.

Sections 14 and 15 approved.

section 16.

D. Eby: Can the minister explain the purpose of this section? It describes that delegation does not make the person — in this case, or in a contemplated case, the building authority — an agent of government. What is the purpose of this section?

Hon. R. Coleman: This establishes that the person who is delegated — to whom a delegation is made under

section 15 — is not an agent of the government. The reason for that is that the purpose of enabling delegation of administrative and building official qualifications to an independent authority is to transfer responsibility out of the government for service delivery aspects of the arrangement.

In some statutes this purpose is achieved by establishing agencies external to government. However, being an agent of the government implies financial obligations between the government and the agency. This is not the intention of this delegation.

The act is explicit that the delegated person or administrative authority is not an agent of government. The reason for that is, obviously, that they’re going to administer exams and operations and collect the fees, licensing and all that. That’s why we’re not going to make them an agent.

Section 16 approved.

section 17.

D. Eby: This contemplates the administrative authority, this professional association, to set fees for itself. What controls will the minister maintain to make sure that these fees are reasonable for inspectors?

Hon. R. Coleman: This isn’t unusual. It basically provides that the administrative authority may set the fees for service in accordance to the fee-setting process established by regulation.

The reason we establish it by regulation…. Although

section 17 gives the authority to an administrative authority to set its own fees and establish its own fee-setting process, the process of setting fees must be set in regulation, which provides a check and a balance against unreasonable fee increases.

Section 17 approved.

section 18.

D. Eby: This

section permits the Lieutenant-Governor-in-Council, the cabinet, to direct a person to conduct an audit of the delegate. In this case, I presume the audit would be done by someone from the Ministry of Finance. This isn’t the Auditor General. Would the Auditor General have authority to audit this agency through this section, or is that a separate authority?

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[ Page 6447 ]

Hon. R. Coleman: Just as clarification, the Auditor General is a statutory officer of the Legislature so wouldn’t deal with an outside authority like this, relative to audit.

The provision to have the audit of operations is basically to ensure an effective oversight mechanization. Mechanism. What am I going to do, mechanize an audit? That’d be interesting, if we could do that. Maybe we can invent a robot or something. I don’t know.

Basically, an oversight mechanism is to verify, if deemed necessary, that the authority is fulfilling its obligation under the administrative agreement. We have that type of clause and other things in other outside agencies to government, as well, that are doing professional jurisdiction stuff with regards to having the auditing power that, should there be a difficulty, we can go and have a look.

Section 18 approved.

section 19.

D. Eby: This question may be better placed in another section, and I’ll leave it to the minister to advise me of that. This continues the Building Code Appeal Board to have responsibility for appeals for some sections of the act. Later on in the act there’s a separate appeal mechanism — to the Safety Standards Appeal Board, I believe it’s called.

Can the minister explain why he has separate appeal processes to two different boards under this act? Why not just have them all go to a single board?

Hon. R. Coleman: A bit of an explanation here. Basically, the Safety Standards Appeal Board presently hears about administrative penalties from other aspects. One of the pieces that it doesn’t have the ability to do is to hear administrative penalties or appeals on administrative penalties with regards to building officials, because it’s not in place. But when the officials are in place and if somebody gets an administrative penalty from the building official’s organization, they have to have a place to go to appeal that. That is where that goes to the Safety Standards Appeal Board, which does a number of these throughout government. That’s why that.

On the other piece which the member asked about. The other stuff is about technical and the Building Act. It’s technical appeals with regards to standards that may or may not need to be appealed. Somebody doesn’t think that the code actually matches up to something.

D. Eby: I just want to clarify my understanding here. The Building Code Appeal Board is focused on technical aspects of the building code. The reason for having the separate Safety Standards Appeal Board do the appeals for the building inspectors is that they’re substantively different hearings. It’s not technical, and the Safety Board is better set up for that. Is that correct?

[1350]

Hon. R. Coleman: Absolutely. That’s correct. Basically, let’s say you get a sanction or a penalty from the building officials now that you’re with them in a professional capacity, and you want to appeal that. You need a place to go. That’s the Safety Standards Appeal Board. The other one is the technical aspect.

Section 19 approved.

section 20.

D. Eby: I’m looking at subsection 20(1)(b), which refers to who may file an appeal with the appeal board with respect to the approvals we were just speaking about.

Section (

b) contemplates that a person other than an employee retained under contract can bring these appeals, which seems intuitive. There’s

section (a), which contemplates the owner of the building potentially bringing an appeal. But there’s no

section that I can see that would allow a neighbour or a tenant or another person that’s affected — especially if you’re doing a single building type of approval, as we’ve heard before — to bring appeals to the board.

Was there a reason for excluding other interested parties from being able to bring these kinds of appeals, or is there another

section in the act that would contemplate these kinds of appeals coming?

Hon. R. Coleman: No. Just to clarify to the member, this only deals with the Building Code Appeal Board. It hears appeals of local authorities. Basically, it’s exclusive to the building authorities and a dispute between builders or developers with regards to the building code. It has no effect on the neighbour’s piece.

My experience, having been on a board of variance many, many years ago….If there’s an offset or, you know, those types of things —an encroachment on property lines or somebody building something that’s outside of a local bylaw — that goes to the variance. But this doesn’t have anything to do with that.

Section 20 approved.

section 21.

D. Eby: I note that this

section deals with when you appeal a board decision. It dictates what the appeal board may or may not do in considering the appeal. They may confirm, they can vary, or they can reverse a decision. One of the powers you typically see for boards is the ability to return a decision to the original decision-maker because they may not have all the facts — this kind of thing. Was there a reason for not providing an authority for the board to send it back and say: “We don’t have all the information here, but we’d like you to reconsider it based on these principles”?

[ Page 6448 ]

Hon. R. Coleman: The board can ask for further information now under the way the act is operating. This continues the authorities that are contained in the Local Government Act. It confirms that the Building Code Appeal Board’s role is not simply to determine questions of building code

interpretation or application, though it still may, but to decide appeals. And in those appeals, they can ask for additional information.

Sections 21 and 22 approved.

section 23.

D. Eby:

Section 23, I assume, contemplates the penalties that can be imposed on building inspectors. There are a number of different potential offences that could lead to penalties and considerations that must be made.

[1355]

One of the things that seems to be missing from this

section that I’m used to as a member of the Law Society is that if you have somebody who is practising building inspecting and who is not authorized to do so, the society can actually go to the court and get an injunction to prevent them from continuing the unauthorized practice. I didn’t see here that the registrar would be able to go to the B.C. Supreme Court and get an order from the court saying: “You must stop doing this under threat of contempt.”

A series of fines that may never be paid is not the same as the ability to order somebody to stop doing something, which is, as far as I understand, only something the B.C. Supreme Court can do. Was there a reason why that power wasn’t put in there, or is there some ability for the registrar to order someone to stop pretending to be a building inspector?

Hon. R. Coleman: I think this works in practicality in order to effectively work for a municipality or for an authority to have to actually be licensed through the building officials organization.

If somebody was working for, let’s say, the municipality of X and they weren’t licensed, at that point the local government is the employer. They can also have sanctions put on them for having somebody that isn’t licensed, so there is a bit of a check and balance there. Plus the ability is to, obviously, post that this person isn’t qualified to be able to be a building inspector in B.C.

But the fact of the matter is that the liability of having an unlicensed employee would be, I think, significant for every building that got built in that jurisdiction. I think the discipline comes from the professionalism, the licensing, and they can actually be held accountable if they have somebody doing this that isn’t qualified.

Section 23 approved.

section 24.

D. Eby: Subsection 24(1) says that these penalties can be up to an amount “not more than the amount prescribed by regulation of the Lieutenant Governor in Council.” In a number of acts in British Columbia there are maximum penalties. Was there a reason why the minister refrained from setting out a maximum penalty for offences under this act?

Hon. R. Coleman: It’s a bit of a chicken-and-egg issue, hon. Member. When the act gets passed, then you can go do your monetary penalties and put them into regulation. There’s a process within government that those types of penalties have to get approved through the Treasury Board, but you can’t take it to the Treasury Board until you actually have the act and then prescribe the regulation. So it’s just the process. It will go there, prescribed in regulations, and then the penalties would be prescribed and put into place.

D. Eby: Subsection (2) sets out administrative penalties that are not monetary as well as monetary. They include a suspension and removal from the register. One of the things that’s absent is the ability of the registrar to issue a warning without suspension — something less than suspension. It’s very common, in my experience in these kinds of oversight situations, that the registrar will find that the complaint is substantiated but not find it at such a level to require a suspension.

Was there a reason for not providing that kind of discretion of up to a suspension or including a warning or something like that?

Hon. R. Coleman: When we looked at this, we looked at how the other administrative bodies that are licensing bodies for professional organizations function. Usually if you’re getting to a register and having a licence suspended or whatever and a monetary penalty, by that time you’ve gone past what the internal discipline and the code of conduct of an organization is. So within the organization’s code of conduct and penalties within their own organization, their bylaws, they’re able to do their own sanctions up to a point. Then this is when you’re getting to the more serious level.

There’s no need for us to dictate that piece because that professional compliance within the profession organization is what takes care of that.

[1400]

Section 24 approved.

section 25.

D. Eby: This issue in 25 builds a little bit on

section 24. The only way that the registrar can serve a notice is if they impose an administrative penalty on a person. If the registrar imposes an administrative penalty as a con-

[ Page 6449 ]

dition, then you can serve the person a notice. Wouldn’t you want the registrar to be able to send a notice indicating a contravention and start creating a record, even if they didn’t impose a penalty?

Hon. R. Coleman: I’m not quite sure I understood the question, so I’ll give you my, sort of, section-note understanding of this section. If that doesn’t answer it, the member might have a follow-up question.

Basically, this is to establish what information must be provided and the notice that the registrar must serve to the local authority or individual on whom the administrative penalty is being imposed.

The

section ensures that the individual or local authority on whom the registrar imposes the administrative penalty is aware of the details of the penalty, including the contravention, the penalty and any relevant dates. The notice must also include the right of the individual or local authority to request or reconsider the administrative penalty, as described in

section 29.

D. Eby: Does someone who is at risk of an administrative penalty or punishment of some kind…? Are they provided a notice that there’s an investigation happening or there’s been a complaint or so on? Is that part of this section?

Hon. R. Coleman: The short answer is yes. But basically, the notice has to include all that information for what the offence is, what the details are, the timing, the contravention and those sorts of things with regards to the administrative penalty.

D. Eby: And that will be set out in the regulations?

Hon. R. Coleman: Yes.

Sections 25 to 27 inclusive approved.

section 28.

D. Eby: This

section sets out a limitation period, which is a time period after which the registrar can no longer pursue action. The way it’s phrased is that it’s “2 years after the date on which the contravention occurred.”

There are a number of options when you do limitation periods. One of the options is that you can do it from when the contravention comes to the attention of the registrar, or you can do it from when the contravention occurred. Why did the minister choose to take the more restrictive

interpretation, which is that if it goes undiscovered for two years, there’s no consequence, rather than starting the time limit at the point at which the registrar becomes aware of the contravention?

[1405]

Hon. R. Coleman: Thanks to the member opposite. I agree with you. My instructions will be… I will ask if we could stand this

section down.

We will e-mail our drafter to see if we can get an amendment that would take that limitation…. I think it should be after it’s discovered as well. That’s the discussion we just had here. It’s probably just a good catch that I didn’t catch as it came through, and I apologize.

We will get something back and see if we can get it fixed. Otherwise, we’ll stand this

section down, and we’ll hold the passage of the bill until such time as we’ve brought the amendment to the floor, if that’s okay with the member.

Section 28 stood down.

section 29.

D. Eby: Thank you to the minister for his consideration of that question.

section 29(3) there’s a distinction between monetary and non-monetary penalties. The distinction is with respect to the impact of a decision….. Let me try to rephrase this.

If somebody is suspended and they appeal the decision, then it’s not automatically put on hold. But if the issue is a monetary penalty and they appeal the decision, then it is put on hold. Why has the minister drawn this distinction between a monetary penalty which is put on hold for the period of the appeal and the non-monetary penalty which is not?

Hon. R. Coleman: I’ll walk through a bit of a description and see if it works for the member.

A request for reconsideration and the subsequent decision by the registrar must be made before a local authority, or an individual can appeal the decision to impose an administrative penalty. By allowing the local authority or individual to request the registrar to reconsider a decision to impose an administrative penalty,

section 29 provides a mechanism for the dispute resolution prior to a formal appeal process. A request for reconsideration must be made within 30 days of the notice of administrative penalty being served and must also include why the reconsideration is warranted.

Subsection (3) establishes that a monetary penalty must be stayed following a request for consideration. Suspension of status as a registered building official and a permanent ban by the registrar, on the other hand, do not need to be stayed during the reconsideration, unless the registrar decides to do so. This ensures that an individual does not continue to work as a building official if there’s a risk that the individual is not qualified to do so.

So you can stay the penalty. Until you are proven to actually be qualified, we’re not letting you back in the market to do something unsafe.

[ Page 6450 ]

D. Eby: I thank the minister for that answer. Subsection (4) sets out a timeline for when the registrar must return a decision. It’s “as soon as practicable.” I note that there’s not a specific timeline set out for confirming, varying or rescinding the penalty. Obviously, if somebody is an inspector, this is their livelihood. Does the minister contemplate there will be some kind of control over the amount of time that these kinds of appeals take before they’re considered and decided?

Hon. R. Coleman: Yeah. The way this

section works and has worked elsewhere in government and in legislation is it requires a registrar to come to the decision on a reconsideration as soon as practical or as soon as possible. Sometimes, there could be more technical things that could draw it out.

To tie it to a tight timeline sometimes wouldn’t be practical. The registrar has to do it as soon as practical and possible. But it doesn’t tie the registrar’s hands to the fact that if he has to get more information, he would go past a period of time. Then the person would be able to go back in and practise without being qualified.

[1410]

D. Eby: I was curious when I read subsection (5) because it seems to suggest that the registrar could conduct hearings on the appeal. There could be a written, electronic or oral reconsideration — or any combination of those things. Is that right? Does this contemplate a hearing process around appeals as opposed to a purely paper-based review? Would they be calling witnesses and so on?

Hon. R. Coleman: No, not necessarily. Basically, what it does is it allows for…. The information that the registrar may want to take into consideration in making their decision could come in written, electronic or oral. It basically prescribes the fact that they don’t necessarily have to have a hearing. It could be a written submission which updates the qualification of “This is where I am,” or it could be an electronic or an oral thing where somebody says, “I’d like to explain to you this situation,” so that he’s able to have the information.

It seems anymore the more you get into administrative law, you seem to have to prescribe that you can actually send something electronically, orally or written. Somebody always says: “Well, you actually weren’t prescribed to be allowed to do it that way.” So then somebody says that you couldn’t take it in an e-mail or text format or whatever the case may be.

D. Eby: As the minister likely knows, I was probably one of those lawyers making those kinds of arguments on various points, so I take his point very well on subsection (5).

Actually, that concludes my questions on

Section 29 approved.

section 30.

D. Eby: Subsection 30(3) defines when an appeal is commenced. Well, it doesn’t, actually. It says that the commencement of an appeal “operates as a stay.” It’s not clear to me what the commencement of an appeal is. Is that when somebody actually just files the appeal and satisfies the regulation in terms of delivering it to the board? Or is it when it’s officially received somehow by the registrar? What is the commencement of an appeal? What is that? Where do we find that time from?

Hon. R. Coleman: Basically, what it does is this establishes appeals from individuals or local authorities who receive a notice of administrative penalty and are dissatisfied with the outcome of the reconsidered process conducted by the registrar.

What happens now is the Safety Standards Appeal Board currently hears appeals related to the imposition of administrative penalties related to public safety in buildings. For instance, it now hears appeals on licensing of residential builders under the Homeowner Protection Act. It is considered the most suitable tribunal to hear appeals related to building officials.

The Safety Standards Appeal Board gets to decide how to deal with that appeal so that it’s dealt with in a proper manner. They can establish a monetary penalty being stayed following a request of appeal, and it can do the suspension of status, as we talked about earlier.

This last section, section (4), enumerates the sections of Safety Standards Act that will apply to the Safety Standards Appeal Board when it hears appeals on the Building Act. Basically, what this allows is for this act and its administrative appeals to be heard by the Safety Standards Appeal Board.

D. Eby: Subsection 30(5) incorporates a number of different provisions of the Administrative Tribunals Act to apply to these kinds of appeals. One of them is subsection 47(1)(c).

[1415]

On my reading of that, the only party that can have their costs covered here would be the tribunal, not the other parties who might be involved in an appeal that’s brought forward and that’s ultimately not successful.

Is there somewhere else in the act — or maybe I’ve misunderstood — that would allow for other parties to these hearings to be able to recover their costs where they’re not the inspector, where they haven’t done anything wrong and they’re just called in either as a witness or as a complainant?

Hon. R. Coleman: No. It’s not the costs that we think that they should have to deal with. If somebody is being

[ Page 6451 ]

sanctioned, if they’re coming through under the act, they can defend themselves using their own resources, like in any other circumstance. We wouldn’t be interested in funding those because then you might get into multiparty things that aren’t applicable to the actual issue that’s before the appeal board, which is whether you’re operating as a licensed building official.

You should, professionally, be prepared to defend that if you’re not — and other things you may have done to break the rules. The same with municipalities or authorities.

This is how most tribunals.... It’s the same way under the Homeowner Protection Act provisions. We do the same thing. They’re actually the same sections that apply today to appeals under the Homeowner Protection Act. We’re just using the same sections for this particular act.

D. Eby: I’m contemplating that perhaps the registrar, who is compelled to participate in this appeal and presumably to present the best case that the registrar has for removing the authority to practise, may want to recover their costs from somebody who brings the appeal that has no merit. It doesn’t seem to me that the registrar or the other delegated authority would be able to do that under this section. Only the tribunal, the safety board itself, would be able to recover those costs.

Hon. R. Coleman: No, this isn’t.... I mean, the way the professional organization and the registrars work is that there’s a licensing piece to it that pays for the operations. A portion of that goes to the operation of the registry. It’s not an expectation that we would then charge people who need to come through to that, that there would be an additional charge.

That’s why you’re building the infrastructure around having professional licensing and people having to be qualified and all the things around it. If it’s going to end up to the registrar, that, normally within these organizations, is paid for by the overarching relationship.

Sections 30 to 33 inclusive approved.

section 34.

D. Eby: We were on a roll there, Mr. Chair. I think people got excited. Sorry to slow it down.

Section 34 talks about costs that are assigned to various parties through these processes, and subsection (2) talks about how you might get a notice, as someone who applies, as I understand it, that says: “Here’s our estimated cost for what it will take to respond to your concern.”

You pay a certain amount of that, and then it may be that the costs exceed that estimate, at which point the minister or the delegate would rewrite and say: “Well, it looks like it’s going to cost more than we expected.” At that point the person has the option to pay more money or lose the initial deposit that they put on, on my reading of this.

So my question is: if you get a notice that the estimate is X, and then the actual cost goes up, and you say, “Well, I didn’t want to pay that much,” is there an ability to pull out and get your original deposit back? Or is this you put down your deposit, and you take your chances? It seems to me that the money that you put there stays there, and there’s no way to get out, except to treat it as lost money.

If the costs goes up unexpectedly, I mean, it’s nobody’s fault. But it seems to me the person shouldn’t have to pay for a half adjudication of the request.

[1420]

Hon. R. Coleman: The first fee is for the scoping — so basically, the innovative scoping. We’ll go back to the 18-storey building, for instance, that some people are talking about, and wood — cross-laminated timber at UBC.

The first piece is a flat fee. Basically, that does the scoping and gives an estimate. Then there’s a contractual thing written into, that people enter into, with regards to…. They try and go with their consultants and estimate whether that will actually be within it. There’s probably a clause in there that says if it goes over we’ll notify and we have to have a conversation. This goes after the scoping, which is the flat fee: your determination, as a person who wants to build this, of risk and what risk you’re prepared to take at what stage to go to another stage if it gets too complicated.

The only thing we can’t do is estimate to you for sure…. If we get into a highly technical building that requires a whole bunch of outside work that is way outside of the scope of what we would normally do, at that point in time we have to have this relationship that says: “Well, actually, this one’s going over, and you need to make a decision whether you want to continue or not continue.”

But it’s not at any point in time that we’re going to take that risk on behalf of the proponent. They’re going to have to make the determination of their own risk.

D. Eby: In subsection 3(b)(ii) it talks about a “specified minimum amount.” Is that something that’s in legislation somewhere else, or will that be set by regulation?

Hon. R. Coleman: That goes back to how we’re going to do the fee thing too. It’ll be done by regulation, where we have to go through that other process that I mentioned to the member earlier — about Treasury Board and that sort of stuff.

Sections 34 and 35 approved.

section 36.

D. Eby: This section, 36(1) and (2), talks about costs that may be recovered in appeals, the appeal board, which include “the reasonable costs to engage or retain a person

[ Page 6452 ]

under

section 27 (2) of the Administrative Tribunals Act.” Can the minister explain who would be retained under this

section of the act, and why?

Hon. R. Coleman: This goes back to that innovative piece again. Basically, it enables the appeal board to have the resource and conduct a full technical review on an application regarding a technically complex appeal or project. If it’s just a….

[1425]

Well, the appeal under the normal code would be, “We don’t like the way this load-bearing wall,” or whatever the case, under the code. There would be no costs associated with something like that. But when you get into a technical one, this just allows for…. If we had to go outside for technical experts, we have the ability to recover that cost.

Section 36 approved.

section 37.

D. Eby: I spent a little time on this trying to figure it out and couldn’t do it. Hopefully the minister can help me.

Section 37(3) is talking about trust funds under the Financial Administration Act. I don’t get it. Maybe the minister can explain what that’s all about.

Hon. R. Coleman: This really clarifies the accounting questions that may arise. Subsection (3) is explicit that the funds received for the purpose of reviewing an application are to be paid to the consolidated revenue fund. The fee issue paper would be submitted to Treasury Board. The request of funds received is to be covered by the vote, which is done in estimates every year.

It’s really to ensure that the money isn’t going into a particular branch of government. It goes into consolidated revenue and then there’s an annual vote line with regards to that particular piece of the ministry that then goes through the annual budget process with the government. That just clarifies the accounting piece.

D. Eby: I understand that the government’s intent here is that this will be a cost-recovering item. Does that mean we’ll be able to look in Estimates and see that, in fact, the revenue that has come in has covered the cost of administering this act?

Hon. R. Coleman: That’s how cost recovery models work within government. Of course, external to government, where you have different stewardship programs, sometimes they have surpluses. But they’re not part of the consolidated revenue piece, so that’s a different kettle of fish. But here, because it’s the Building Act and it’s this particular structure, the vote covers it, and it’s supposed to be cost recovery.

D. Eby: I just want to clarify. That means that in estimates, we’ll be able to look across a line item — or, at least, I assume — and request the specific numbers that show that that is, in fact, operating on a cost recovery basis.

Hon. R. Coleman: That would be correct.

Sections 37 and 38 approved.

section 39.

D. Eby: This subsection 39(1) talks about how to serve notices required under this act. This one requires a regulation of the Lieutenant-Governor-in-Council, which is cabinet. I’m curious about why the higher standard for service of notice. Most of the other regulations are for the minister, and here this one is going to cabinet.

[1430]

Hon. R. Coleman: Basically, this establishes that notices served under the act must be served in accordance with requirements prescribed by the regulation of the LGIC, which is how we do it in most acts. This is pretty much a standard

section with regards to that.

D. Eby: Subsection (4) exempts the appeal board and Safety Standards Appeal Board from having to comply with these regulations for notice. Why has the minister exempted these agencies?

Hon. R. Coleman: Basically, that establishes that this

section does not apply to notices or documents of the Building Code Appeal Board or Safety Standards Appeal Board under

part 5 of the Building Act. For tribunals, which these aren’t, these matters are dealt with through the application of the Administrative Tribunals Act, so that’s why.

Section 39 approved.

section 40.

D. Eby: Can the minister explain why

section 5 of the Offence Act does not apply to this act or the regulations?

Hon. R. Coleman: This

section specifies that

section 5 of the Offence Act does not apply to the Building Act. Instead,

part 5 of the Building Act creates an administrative penalties arrangement to deal with contraventions from provisions of this act. Therefore, it’s not required.

Section 40 approved.

section 41.

D. Eby: I’m confused by this section, given the regulation-making powers that are established in the begin-

[ Page 6453 ]

ning of the act. Why is there another whole

section here creating new regulation-making powers for the minister under this act that seem to be duplicating powers that were already established in other areas of the act?

[D. Horne in the chair.]

Hon. R. Coleman: This one’s interesting. Actually, it’s not.

The member, given his own education and previous careers, is probably familiar with legislative drafters at some level. This is referred to me as being good drafting practice.

What I’m told is that it is consistent with good drafting practice to also include it in this particular reference to the

Interpretation Act, even though it shows up elsewhere in the legislation.

D. Eby: Actually, those are all my questions on

Section 41 approved.

section 42.

D. Eby: This may be another example of good drafting. It seems to refer to

section 41 of the

Interpretation Act, which I think would apply anyway. I’m curious about whether there is any explanation for this

section beyond that.

Hon. R. Coleman: Yeah, it’s the same answer.

Section 42 approved.

section 43.

[1435]

D. Eby: This is a very important question for local municipalities. It relates to when the local authorities, bylaws, and so on, will be restricted by this new legislation and the new regulations.

It’s two years after the date that this

section comes into force. I just want to clarify with the minister. My understanding is that essentially, when we pass this section, it will start the clock for two years from this date that local municipalities, on restricted matters, will be required to be in compliance with this act.

Hon. R. Coleman: Just a bit more clarification. It will actually come into force when we put the regulation in place two years hence. This really lets us work with local government to get off their books some of those types of building code things that just don’t match up and make any sense with regards to it. It allows us to get that level playing field, so then we can then start to work with them on what might be local specific things.

They still have to come through this Building Act to get them approved so that we get some consistency on even the upside, to make sure that the safety and the well-being of buildings in B.C. are protected under the Building Act and the building code.

Section 43 approved.

section 44.

D. Eby: Subsection 44(2) sets two different application dates around the application of this act to qualification as building officials. One is a six-month cut-off date, and one is a four-year cut-off date. That’s what my notes say. Oh, there it is. It is under the

definitions. It’s 44(1). The first cut-off date is the date six months after the date. The second cut-off date is four years after the date.

Why such a significant disparity between the two? Why is everybody not either six months or two years? It seems like an unusually long period between the two different categories of inspectors.

Hon. R. Coleman: This goes to the fact that they’ve got six months to become a member of the Building Officials Association of British Columbia. And then if they are not qualified by other professional standards, they have four years to reach those qualifications, as earlier in the act it gives them time to do that. Then after that, they will continue with their ongoing education.

That is just providing for that period of transition for building officials and local authorities, with basically a two-stage transition period before they must comply with the restrictions in

section 10 on whom they may make compliance decisions on behalf of local authorities in the future.

Sections 44 to 48 inclusive approved.

section 49.

D. Eby:

Section 49 amends the Community Charter, and there’s a similar

section in this cohort,

section 57, that seems to remove similar language from the Local Government Act. The language that’s removed is “to the extent that they do not exceed…provincial building regulations.”

Can the minister explain why this language was removed and what the implications are of that?

Hon. R. Coleman: When the act comes into place, this removes redundancy. While this language captures the intention of the act, this

section eliminates those references to provincial building regulations relying on the Building Act’s overall precedence in

section 5, and it avoids a situation in which some provisions of other acts impose a prohibition on exceeding provincial building regulations and others do not.

[ Page 6454 ]

D. Eby: So how does this work with the idea, then, that a municipality could potentially have smoke alarm requirements or other fire safety requirements that exceed the provincial code standard that we were talking about earlier? I just want to clarify that my understanding earlier, that those may be areas were municipalities would be able to set a higher standard, was still our shared understanding.

[1440]

Hon. R. Coleman: Earlier, in

section 2…. Basically, everything has to come off the books over two years. Then they come back, and there are provisions earlier in the act as to how they can come in if they want to increase portions of their building code to do certain things. This basically takes this, which is not necessary anymore, and changes it so that it matches up to the rest of the legislation.

D. Eby: That concludes my questions on the act. I just wanted to take the opportunity to thank the minister and his staff for their help on this and for their responsiveness on the question of limitation period as well. I look forward to seeing that when it comes back.

Sections 49 to 63 inclusive approved.

Title approved.

The Chair: I understand that

section 28 has been stood down.

Hon. R. Coleman: Thanks to the member for his interventions. We think it’s a pretty small amendment, and we’re just going to check what its status is. So if we could take a five-minute recess, we may be able to come and do that amendment and then complete the act. Obviously, it’ll be by approval of the House.

The Chair: The committee will take a brief recess.

The committee recessed from 2:42 p.m. to 3:10 p.m.

[D. Horne in the chair.]

section 28.

The Chair: The minister has an amendment.

Hon. R. Coleman: As the Chair knows, we stood down this

section so I could bring a floor amendment with regards to it on the limitation period with regards to offences under the act. Thank you to the member opposite for his intervention on this. I’ve given him a copy of this, but I have to read it into the record. We would like

section 28, subsection (1) amended to read:

SECTION 28, by deleting the text shown as struck out and adding the underlined text as shown:

Limitation period

(1) The time limit for giving a notice imposing an administrative penalty is 2 years after the date on which the contravention occurred the act or omission alleged to constitute the contravention first came to the attention of the registrar .

(2) A certificate purporting to have been issued by the registrar and certifying the date referred to in subsection (1) is proof of that date .]

I so move the amendment.

Amendment approved.

Section 28 as amended approved.

Hon. R. Coleman: By leave, I move that the committee rise and report the bill complete with amendment.

Motion approved.

The committee rose at 3:11 p.m.

The House resumed; Madame Speaker in the chair.

Reporting of Bills

BILL 3 — BUILDING ACT

Bill 3, Building Act, reported complete with amendment.

Madame Speaker: When shall the bill be considered as reported?

Hon. R. Coleman: By leave, now.

Leave granted.

Third Reading of Bills

BILL 3 — BUILDING ACT

Bill 3, Building Act, read a third time and passed.

Hon. J. Rustad: I call committee stage debate on Bill 12.

Committee of the Whole House

BILL 12 — FEDERAL PORT

DEVELOPMENT ACT

The House in Committee of the Whole (Section

B) on Bill 12; D. Horne in the chair.

The committee met at 3:14 p.m.

section 1.

[ Page 6455 ]

B. Ralston:

Section 1 is the

definitions section. The

section says in reference to “port” that it “has the same meaning as in the Canada Marine Act.”

[1515]

section 5 of the Canada Marine Act there is a definition of “port,” but in

section 2 there are a number of more expansive

definitions — of a “port authority,” a “port facility,” a “public port,” a “public port facility.”

Can the minister explain why only this particular definition of “port” was chosen? Is it intended…? One can imagine that the agreement that might be forthcoming might be with a port authority. It seems that there’s a certain economy in the

definitions

section here.

Hon. R. Coleman: Basically, “port” has the same meaning as in the Canada Marine Act. That’s what that identifies. That’s why…. That is what’s in the Canada Marine Act.

B. Ralston: No. I understand that. That’s

section 5 of the Canada Marine Act. But in

section 2 of the Canada Marine Act, which is the

definitions

section — and the broader heading is “Interpretation” — there are a number of

definitions, including a definition of a “port authority,” a “port facility,” a “public port,” a “public port facility.”

The definition under

section 5 reads as follows: “‘port’ means the navigable waters under the jurisdiction of a port authority and the real property and immovables that the port authority manages, holds or occupies as set out in the letters patent.” The very definition itself refers to a port authority, which is also, as I’ve said, defined in the act.

So I’m wondering why those

definitions aren’t simply included here in the

definitions section. It seems to be a missing part of the

definitions section.

[1520]

Hon. R. Coleman: We’re entering into an agreement with regards to the Canada Marine Act in a port in British Columbia. The federal regulation referred to in the definition applies relation undertaking situated in a port in British Columbia, and by using the definition of “port” in the Canada Marine Act, it gives us what we require to do to accomplish what we need to do.

A. Weaver: I, too, have similar troubles as the member for Surrey-Whalley in terms of trying to find a definition of “port.” I was going to raise a similar question. I’m wondering if perhaps the minister, if this goes through the weekend, might consider bringing back a floor amendment to actually clarify this, because it is not clear at all within the Canada Marine Act what a definition of port is in isolation from all these other descriptors such as port authority, public port, etc.

The definition of “agreement” reads as follows. It means “an agreement, referred to in

section 64.6 of the Canada Marine Act, among Canada and the government, or agents of either, in respect of an undertaking situated in a port in British Columbia.”

This is one of many references made in Bill 12 to recent changes in the Canada Marine Act. Specifically, the definition of “agreement” makes reference to

section 64.6 of the Canada Marine Act. As a B.C. legislator, in my view it’s imperative that I understand how the provincial government interprets this federal legislation that is heavily referenced throughout Bill 12.

My ability to understand the implications it will have on British Columbians is directly tied to whether the British Columbia government can explain what powers they are creating within this legislation. My underlying concern is that this legislation appears to be asking MLAs to provide the government the power to enter into agreements with the federal government that could give it wide, sweeping powers.

I’m not confident that this bill provides a mechanism by which future agreements would receive the legislative scrutiny they require. Given that this may be my last opportunity to hear from the government about how exactly they interpret the powers they are proposing, I want to explore some of the powers that might exist if an agreement was to be created, using this definition of agreement, between the provincial and the federal government.

The federal

section 64.6 on agreements referenced in the definition for “agreement” in Bill 12 reads as follows:

“The Minister may enter into agreements with any person or body, including the government of a province, with respect to the administration and enforcement of a regulation made under subsection 64.1(1).

“

(2) An agreement referred to in subsection (1) may provide for the arbitration, in accordance with the law of the province, of disputes arising from the

interpretation or application of that agreement, in which case the Commercial Arbitration Act does not apply to the dispute.”

I have five questions on this topic. Can the minister please explain what the provincial government’s

interpretation is of the ability to control “administration and enforcement” of regulations that these agreements would allow for?

[1525]

Hon. R. Coleman: First of all, I’m not going to get into the

definitions, discussions or sections of the federal marine act. That is not what we’re debating here today. This act enables us to enter into agreements between the province of British Columbia and the federal government on ports in British Columbia only. It is specific that way. Those agreements are made public. I am not prepared to get into a debate about sections that are contained in the federal pieces of legislation.

A. Weaver: I didn’t ask for discussion of that. I asked the minister what the provincial government’s

interpretation was of the ability to control the “administration and enforcement” of the regulations that they would be em-

[ Page 6456 ]

powered to actually administer and regulate and enforce if this bill were to pass.

That’s a very clear question, asking the provincial government what they’re actually taking British Columbia into if this bill were to pass. It’s not a question debating the

definitions within the actual federal act. It’s talking about our definition and clarifying what that means for me as an MLA and others in this House.

Hon. R. Coleman: We are in the

definitions section,

section 1. The definition says “means an agreement, referred to in

section 64.6 of the Canada Marine Act, among Canada and the government, or agents of either, in respect of an undertaking situated in a port in British Columbia.” That is the definition.

This is to allow us, enable us, to enter into those agreements between the federal port and us with regards to regs that may apply in British Columbia that B.C. may wish to use and a relationship with the federal government and federal ports relative to specific types of projects, and those agreements are made public.

B. Ralston: With respect, I disagree slightly with the minister. What

section 1 is doing is incorporating into B.C. legislation the definition contained in the federal act. If this bill passes, or when it passes, that will become part of British Columbia law. The issue about what the

section means, in this context, is a relevant question. The minister can say, “Well, it’s just a federal definition,” and brush it off. But the very purpose of this bill is to incorporate that definition into British Columbia law.

Now, the minister has a specific functional purpose in mind, but there are two aspects, in both

section 2 and

section

Section 2 is the authority to enter into an agreement.

Section 3 is to take a federal regulation that’s passed under the authority of the Canada Marine Act, and the relevant provincial agency that’s designated will administer a federal regulation.

These

definitions are British Columbia

definitions because they’re incorporated by reference through the mechanism of this statute. I agree with the member for Oak Bay–Gordon Head, to this extent, that it is relevant to ask what the minister’s understanding is of these

definitions since they are becoming, by the operation of this legislation, British Columbia

definitions.

[1530]

Hon. R. Coleman: The

section in the Canada Marine Act allows them to enter into an agreement with us, and our

section and definition allow us to enter into an agreement with them.

B. Ralston: Looking at the definition of “federal regulation,” it’s defined “under

section 64.1 of the Canada Marine Act that applies in relation” — and the nuance here is — “to an undertaking situated in a port in British Columbia.” The regulation

section in the Canada Marine Act that’s referenced,

section 64.1, has in subsection (2) a number of included powers: (

a) all the way through to (n).

[1535]

Hon. R. Coleman: Basically, the federal regulation means that the regulation applies with regards to an undertaking with the province of British Columbia in a port in British Columbia about a specific activity. This legislation as the regulation, which would be done federally now, would be with regards with LNG.

The reason for this is pretty simple. We have the Oil and Gas Activities Act, which applies anywhere in British Columbia for a gas plant or LNG facility that’s not presently in a federal port. At the same time, the federal government doesn’t specifically feel that they have a particular piece of legislation that monitors and has the expertise and people around monitoring that activity in a federal port.

This allows us to accept their regulation. They look at ours. They can incorporate it with theirs. It allows us, by agreement with them, to be able to now be the people that would monitor that activity because we have the expertise, we have the people who do the regulatory work already, and we understand the industry. It allows that activity now to take place in a federal port because they would, for lack of a better description, be in an agreement with us that we would monitor and manage that piece using our laws for discipline in and around it just the same as anywhere else in British Columbia, if that was located somewhere else in B.C.

A. Weaver: Well, I would like to come back to the federal regulation in a moment with some questions. I just wanted to go back at this juncture and finish off with the definition of “agreement.”

I was wondering. Under this definition, if the government actually enters into agreement, how will members of this Legislature be able to review any agreements that are made under this definition?

Hon. R. Coleman: All agreements become public.

A. Weaver: Will any specific regulatory power with respect to being administered or enforced by the province be part of that public process?

[1540]

Hon. R. Coleman: The federal reg would be public. It is then going out for consultation. All ours does is allow us to have them in the consultation to look at our regs with regards to the Oil and Gas Activities Act, relative

[ Page 6457 ]

specifically to LNG in the Port of Prince Rupert.

There are five proposals in that area, and only one of them is actually in the Port of Prince Rupert, at this stage, at a level where this would need to be applied. We can now enter an agreement to work with their regs and them have us work with our regs with regard to oil and gas activity, on that particular activity in the port, because that works best for both parties.

There will be consultation on the regs. That’s a federal process. We will provide our information as we get the authority to actually discuss an agreement with the federal government as a result of this piece of legislation. We would do the work, which also would be public, as it came through, and then the actual agreement at the end of the day would also be public.

V. Huntington: I wonder if the minister could tell me whether he anticipates that the agreement will permit the province to delegate any of its authority under the agreement to another body, another person?

Hon. R. Coleman: The short answer is no. Basically, the acts that apply on the ground and the officials that do the work on the ground — statutory authorities, etc…. The acts that allow people within British Columbia to actually regulate the activity on the land base, whether it be oil and gas activity, environmental assessment — all of those things — would not be delegated. This does not allow for that to happen.

V. Huntington: Could the minister advise whether the freedom of information and privacy act would be referenced in the agreement?

Hon. R. Coleman: The member would know, having debated other acts, that that’s implied in all legislation in British Columbia. We’re all governed under the freedom of information and privacy act in British Columbia, and this doesn’t change any of that.

[1545]

V. Huntington: Another question, just to satisfy a concern I have because of some of the language in the marine act. Does the minister anticipate that all of B.C.’s existing environmental legislation will be subject to the agreement? Or will there be regulatory powers extended to British Columbia under the agreement that weaken federal legislation?

Hon. R. Coleman: This agreement would not eliminate any provincial or federal statutory responsibilities to the environmental assessments on projects and those types of things, simply because that’s not what this thing will do. It will in regulation, for instance, allow for the adding of recognizing laws like the Oil and Gas Activities Act from British Columbia as being applicable in port lands.

Today, because it is in port lands, by definition it probably wouldn’t be applicable there. The intent is to get so you can have it applicable and have that regulatory process overarching.

When it comes to environmental assessment in ports…. Actually, right now we have an environmental assessment process going on for the Pacific NorthWest LNG plant as well as a provincial environmental assessment process. They’re both in an EA process. Both of our processes are ongoing and will continue to be applied this way.

The only exception, frankly, is when it’s not on federal port lands. Right now we’re doing environmental assessment processes on projects that are on non–port lands, applying B.C.’s environmental assessment process and going through that extensive EA process. But this doesn’t affect the ability for those things to continue.

B. Ralston: Looking further in

section 1 at the definition of “undertaking,” the reference is to

section 64.1(2)(

a) of the Canada Marine Act. The definition there, really, makes reference to “undertaking.”

[1550]

It seems to be a completely circular definition. Undertaking refers to this section, and the definition of an “undertaking” is that it’s an undertaking. What is meant by an undertaking? It’s a relatively vague term. I’m wondering if there’s any legal precision to it. Or does it apply to any activity whatsoever that takes place within a port?

Hon. R. Coleman: The federal regulation refers to their act, which is basically that there’d be an undertaking with regards to federal regulation to be defined in regulation. But I think it might be better understood for everybody if I just read a bit of a piece of an explanation relative to “undertaking” as it’s meant with regards to what is going to happen as this act comes through.

It is: “An undertaking means an undertaking as defined in regulation in the Canada Marine Act.” So they will put that in regulation, which would then come back into the previous discussion. “With respect to the Prince Rupert port, the undertaking will be defined in the planned federal regulation.” That’s applying to the Port of Prince Rupert, because that’s what we’re dealing with. “In that case it will likely be defined as a natural gas activity that is set out in the provincial Oil and Gas Activities Act, which would include the LNG-related developments planned for the port.” That’s basically the gas pipelines coming into the port, the LNG facilities and the associated infrastructure and activities.

Now, that is basically what is trying to be defined here so that the environmental assessment stuff is all still done — all of that. It’s just that this now allows for them to work under regulation. Thus it will allow us to regulate that activity using laws that are applicable to oil and gas activities everywhere else in British Columbia.

[ Page 6458 ]

A. Weaver: I’ll have questions later, but if I could come back to the definition of “federal regulation” for a second. If the agreements that can be entered into revolve around the concept of the administration and enforcement of a regulation made under subsection 64.1(1), I think it’s important that we canvass the government’s

interpretations of the regulations that are being allowed for. Without understanding these implications, government would be asking the House to pass a blank cheque that hasn’t received the scrutiny required to ensure that British Columbians’ best interests are being looked after.

The first regulation that I’d like to explore the government’s intent on is the regulatory power — which is under

section 64.1(2)(a) — to “designate the undertakings or classes of undertakings to which the regulations apply.”

Can the minister please provide his

interpretation of the implications of this regulation for British Columbia that we will, later in

section 2, bring into authority if we enter an agreement?

[1555]

Hon. R. Coleman: Sometimes we get a kick out of some of our own discussions, going back and forth, as we go through this.

It’s to be defined in regulation. I think the example I gave is pretty good with regards to the Oil and Gas Activities Act. If, in the future, there was going to be something else added, it would actually be added by regulation again. It would still go out to the same consultation process with regards to it, as I have described for this one. So it’s not like it’s a blank list.

The federal government will create their list. Let’s say they decided they wanted to add something along the lines of, as one associate said, a hospital on port lands, and we wanted to know whether we wanted to regulate that, because of the mental health issues and the Hospital Act and stuff like that. We could actually have that definition added into an agreement to do that, and the B.C. people would be able to monitor all of those aspects that we do in our regular hospitals. But we could also decide not to do that. Same thing if they wanted to add a particular type of power plant. Those sorts of things would all come with future regulations.

This is the enabling ability to get to the first step, which is this piece, which is the LNG activity of an actual application. That exists. It’s going through environmental assessment both provincially and federally, and the regulatory management of that activity is being shared, for a lack of a better description, and defined that it could be shared with the Oil and Gas Activities Act for the purpose of this particular project, basically defining that.

Basically, that means that this is actually…. I know some members opposite don’t think this is actually a good thing, but harmonizing some of these activities to recognize standards that are already in place, that are world class, to apply into an area where the expertise may not exist is a good thing. To continue to be able to do that, to work with the federal legislation and regulation, I think is also a good thing, because it gives you a better outcome and better control on the health and safety aspects of a particular project.

A. Weaver: Coming back to the regulations, if the government enters an agreement under the

definitions here, and the regulations are then set under the

definitions here, to what extent is the government, with these

definitions, setting itself to have federal jurisdiction set the regulations that the government must administer and enforce?

For example, let’s suppose that the federal cabinet to which powers are granted here can make a regulation with respect to the destruction of documents on an industrial site. To what extent is the B.C. government required to administer that and enforce that if it were to enter an agreement with this definition, according to

section 64.6 and the regulation that is in place in the definition defined in Bill 12 here, referring to 64.1 in the Canada Marine Act?

Hon. R. Coleman: Because it’s an agreement, with the undertaking they cannot force us to administer something that is not already in the agreement. Provincial laws apply for us. If the federal government chooses to change a law, obviously that is not in provincial control. But we cannot be forced to administer something that is outside our own pieces of legislation for what our authorities are to do. With an agreement like this, because it’s in the agreement, you can’t just go change a regulation and force us to do something because it’s by agreement.

[1600]

A. Weaver: In the federal act it quite clearly gives the federal cabinet sweeping powers to introduce regulations. Has the minister, therefore, got legal opinion that he would share with us that these sweeping regulations that would be put into federal regulations would not apply to an agreement that was signed, after it was signed?

Hon. R. Coleman: A regulation is listed and the activities are listed by agreement. That goes out, the regulation goes out to public discussion by the federal government. We agree by agreement to add in things like the Oil and Gas Activities Act or whatever, and they agree with us on the regulation, which is the ability to harmonize some things to make them work. Then the agreement is undertaken. It’s done.

The federal government is not in a position to go add another regulation after the fact that will supersede that agreement. That is our understanding and our advice.

If later on there’s another activity that we wanted to add with regards to an activity in a port in British Columbia, i.e., like I mentioned earlier with a hospital or

[ Page 6459 ]

whatever because it happens to be close — there are some port lands that are close to residential and commercial and density — that sort of thing could happen.

If we wanted to have an agreement to do that, we’d enter into a separate agreement and amend the regulation, or a new regulation, to do that. It would not affect this. The federal government cannot after the fact come in and change this by adding another regulation, because we’re actually into an agreement that has already identified the activity we’ve agreed to relative to this undertaking.

A. Weaver: Thank you, to the minister, for that very comprehensive answer.

The second regulation that is being allowed for under an agreement, in Bill 12, is the regulatory power to “confer any legislative, administrative, judicial or other power on any person or body that the Governor in Council considers necessary to effectively regulate the undertaking.”

What I was referring to here is, again, in accepting this regulation definition, which points to

section 64.1 under the Canada Marine Act, from which I just read…. My question, then, to the minister is: could he interpret what this regulation means, what the implications of this regulation are for the province of British Columbia?

[1605]

Hon. R. Coleman: I’m not going to go through and discuss the meaning of every

section of the Canada Marine Act. I’ve been pretty clear this enables us to let the feds come up with a regulation that can go out to public scrutiny and that we can agree to add the activities into. We then would be able to go into an undertaking, an agreement — so that we could actually help or be part of or control the activity in a port — that is relative to some provincial legislation that would be better applied than, let’s say, a piece of federal legislation, particularly under that activity.

It’s the activity specific to this piece. So even though there are broad regulation-making powers, it’s pretty narrow under this act what we would do. We have to get there with the reg, we have to agree to the reg, and we have to enter into an agreement and an undertaking. At that point in time it’s narrowed down just to the scope relative to British Columbia and that activity.

A. Weaver: With respect, the Canada Marine Act has already passed, and within that, these regulations are attached. They are a matter of Canadian federal law. So these regulations are not subject to further public scrutiny. They are Canadian law. This is why I’m probing the questions as to what this means to British Columbia.

If we look at the third regulation…. It says as follows: “(

c) confer on any person or body the power, exercisable in circumstances and subject to conditions similar to those applicable to the exercise of that power under the law of the province in which the undertaking is situated.”

It wasn’t immediately clear to me what the provincial government is agreeing to with this regulation. What the minister’s

interpretation of what the province is actually agreeing to is the question I have.

Hon. R. Coleman: I’ll try this again. The regulation we’re talking about isn’t present in the Canada Marine Act or what’s been passed at the federal level. That is regulatory-making powers and regulations in a specific act. What we’re talking about is the ability to enter into an undertaking and discussion relative to activities in ports, where we could identify that activity where provincial laws could apply.

They could add that to the regulation and consultation. That would allow us to do site-specific activities, like I talked on the Oil and Gas Activities Act, relative to things like LNG coming into federal ports.

[1610]

That’s so you can actually make sure that the expertise is there for the safety and the management of that particular activity in a jurisdiction where they have more expertise and laws that already apply that need not be rewritten somewhere else in Canada in order to make that activity work. That regulation will go public, for consultation, when it’s ready to go. That will take a bit of time as they do the work and that regulation then goes out.

That regulation will be specific, although it’s in relation to the Canada Marine Act, to that activity as identified in an added regulation by the federal government, in agreement with us, with an undertaking to enter into an agreement to be able to actually do the monitoring with regards to activities in federal ports.

V. Huntington: I want to thank the minister. I am beginning to understand the specific types of regulation that will be entered into in the agreement. I wonder in terms of those regulations: does the minister anticipate any transfer of regulatory powers in the judicial sphere? If so, what might they be?

Hon. R. Coleman: The answer to that question is no.

A. Weaver: Coming back, under the agreement laid out in Bill 12, the provincial government is agreeing to the possibility of regulation that would create immunity for people operating under this act, Bill 12. Specifically, it reads…. This is what we’re agreeing to, in signing on. In

section 64.1(2)(

h) is the following: “set limits on the liability of, and establish defences and immunities for, any person or body exercising a power or performing a duty or function under the regulations.”

I see now where the government is trying to go, with respect to LNG. My concern, of course, is the much broader context of this regulation that we’re agreeing to here by agreeing to these

definitions. My question here is: in the way the provincial government interprets this

[ Page 6460 ]

regulatory power, are there limits on the immunity that can be offered?

Hon. R. Coleman: When we do our regulation, it is applicable to laws in British Columbia. Some of our legislation has issues around liability, or what have you, that are defined in legislation. That would be the only applicable portion of a law relative to an activity that we’ve agreed to in a regulation that we would administer in British Columbia.

[1615]

We’re not going to administer the federal act. That will be up to the federal government how they apply that act because it’s a federal piece of legislation.

[R. Chouhan in the chair.]

Our activity here is to enter into a regulatory process. Where added to federal regulations or activities that are normally governed by activities and laws in British Columbia, we can enhance the ability to do it better because we already have the infrastructure, the people, in place. We already have the laws in place and have the penalties and all of those things with regards to non-compliance. All would apply once we enter into the agreement of regulation because then our laws are the ones we’re administering in the ports with regards to that.

That’s the only piece where we’re involved. With regards to any other laws that the federal government may have, they won’t apply because it’s only a regulation specific to what laws of B.C. we would administer on a specific activity in a port located in British Columbia only.

A. Weaver: That was the answer I was hoping. It actually answered my second question on this topic, which was: was the government concerned that these immunities might violate provincial law? But the minister is being very clear, which is why I’m hoping we could actually make that amendment.

My concern is that in agreeing to the definition of “federal regulation” as it is, we’re agreeing, as defined in 64.1 of the Canada Marine Act…. I would like to amend that:

[ By adding the text shown as underlined :

Section 1

“federal regulations” means a regulation under

section 64.1 of the Canada Marine Act that applies in relation to an undertaking situated in a port in British Columbia ;

, excluding

section 64.1 (2)(

h) of the Canada Marine Act . ]

I have a number of copies of this amendment here.

On the amendment.

A. Weaver: The purpose of this is simply to reflect in this legislation that

section 64.1(2)(h), which we just discussed, will not be considered a federal regulation under the definition of “federal regulation” we have here in

section 1 of Bill 12.

The Chair: Member, would you explain what

section 64.1(2)(

h) of the Canada Marine Act is?

A. Weaver:

Section 64.1(2)(

h) of the Canada Marine Act is a regulation which, under definition here, we are agreeing as a federal regulation. It says specifically that it sets “limits on the liability of, and establish defences and immunities for, any person or body exercising a power or performing a duty or function under the regulations.” At the top of that,

section 64.1(2) says: “Without limiting the generality of subsection (1), a regulation made under that subsection may….” And that was the (h) — what I said.

What I’m asking here is to amend this in our definition of “federal regulation,” which says federal regulations, as set out “under

section 64.1 of the Canada Marine Act, ” to exclude

section 64.1(2)(h), which is within 64.1, which specifically talks about liability issues, which would have the potential effect on the ability of the province, in my view, to….

There’s some concern about immunities and violation of provincial law. The minister, essentially, said that this was the intent, and I’m just hoping to make that very clear in this description of what a federal regulation is. It is not subsection (h). It’s the other ones, to this stage.

Amendment negatived on division.

[1620]

A. Weaver: I’ve also got some grave concerns about the next two regulations in the Canada Marine Act that we are agreeing to here as being defined as federal regulations under this definition, which then get brought into an agreement which we actually, under

section 2 of Bill 12, enter into, and then we, under

section 3 of Bill 12, later implement, if this bill were to pass.

These grave concerns are as follows.

Section 64.1(2)(

k) of the Canada Marine Act, which is a regulation there, may “prescribe rules respecting the confidentiality or disclosure of any information obtained under the regulations” and “(

l) provide for the retention or the disposal, including the destruction, of documents, regardless of medium, that are created or submitted under the regulations.”

This has some disturbing concerns for me, as it essentially makes rules allowing information regarding activities in port to be kept confidential or not and authorizes the destruction of documents created or submitted in respect of the activities in ports. I recognize that we would not want that to happen in British Columbia.

It seems to me that it would be prudent for us not to accept this as a federal regulation part per se, which is why I’m going to ask the minister first if he could provide his

interpretation about why it is in British Columbia’s best interests for us to gain the power to determine these rules under these regulations, or for others to have these

[ Page 6461 ]

potential rules applied to them, if we accept this definition of a federal regulation?

The Chair: Shall

section 1 pass?

A. Weaver: That was fast. I have two more amendments here on that, to suggest that we explicitly remove sections (

k) and (

l) from the Canada Marine Act’s

definitions of what would be considered federal regulations by our definition.

The Chair: Hon. Members, the amendment reads:

Section 1

“federal regulations” means a regulation under

section 64.1 of the Canada Marine Act that applies in relation to an undertaking situated in a port of British Columbia ;

, excluding

section 64.1 (2)(

k) of the Canada Marine Act . ]

Amendment negatived on division.

A. Weaver: I move the second amendment with respect to (l).

The Chair: Hon. Members, this amendment reads:

Section 1

“federal regulations” means a regulation under

section 64.1 of the Canada Marine Act that applies in relation to an undertaking situated in a port in British Columbia ;

, excluding

section 64.1 (2)(1) of the Canada Marine Act. ]

On the amendment.

B. Ralston: Could you just clarify which subsection was being referred to? The member earlier provided me with the written copies, but I don’t have a written copy of this one. Okay. Subsection (l). Thank you.

V. Huntington: I wonder if I could ask a question of the minister to clarify what the agreement might contain in relation to this amendment.

[1625]

The Chair: Member, would you repeat the question again, please.

V. Huntington: Well, could I ask the minister a question in regard to this amendment?

The Chair: Yes, you could ask that question, Member.

V. Huntington: I wonder if the minister could tell us whether he would anticipate anything in the agreement to be other than the normal rules of collection and destruction of documents that would apply to, say, the provincial archivist — if any regulation were to be agreed to under the agreement would be any anything greater than what British Columbia now has, in terms of the laws regarding documents in B.C.

Hon. R. Coleman: I think I’ve answered that question earlier in my explanations about how the supply, in this exercise that we’re going through, is actually not applicable to an undertaking in a regulation that’s done through public consultation relative to a specific activity in British Columbia in the broader discussion with regards to that.

Our laws apply when we enter into an agreement by regulation, an undertaking relative to an activity, like we would in the Port of Prince Rupert, where we bring in the Oil and Gas Activities Act or other legislation. In British Columbia our freedom-of-information and privacy laws would apply.

A. Weaver: My final question is with respect to the definition of “undertaking.” I have two….

The Chair: On the amendment. You have a question, Member, on the amendment?

A. Weaver: I’m sorry, not on the amendment, on the next….

Amendment negatived on division.

A. Weaver: My final question is with respect to the definition of “undertaking.” Now, I do very much appreciate the information that’s been provided through you, hon. Chair, to us with respect to what the minister has in mind — in particular, things like LNG facilities in Prince Rupert.

However, in putting Bill 12 forward, it doesn’t mention LNG anywhere in this. In fact, it’s quite broad. So I see no reason why this couldn’t, for example, apply to, say, coal exports in Fraser Surrey Docks or perhaps, say, heavy oil exports out of Westbridge or out of Prince Rupert.

My question to the minister is: is there any intention that this will actually…? By passing this bill, is there intention to accept the potential federal attempts to deregulate some of this process by entering into agreements with respect to an undertaking involving either heavy oil or thermal coal exports from the province of British Columbia?

[1630]

Hon. R. Coleman: This is about us, through a regulation, agreeing that we would use some provincial laws to administer an activity within a federal port because we think that it would be more beneficial, because ours might be better laws — stronger. We’re closer to the activity to monitor it. We have people with expertise.

This doesn’t have anything to do with what activity as far as an export through a federal port is. It doesn’t give us any control or opportunity to do that. That is not within our jurisdiction. This allows us….

I know it doesn’t refer to LNG in it. I used the example for the member because that’s the first antici-

[ Page 6462 ]

pated use, if this would ever happen. This is only because, when we sat down and looked at this…. If we can have this ability to harmonize and move into an undertaking with a regulation that does get consulted publicly, we could use laws of British Columbia in federal ports, which is not allowed today, on specific activities to help monitor them and do the job of monitoring them because we have the expertise. That’s what this is about.

What activities go out through ports? There is a variety of regulatory processes around that have nothing to do with this legislation.

A. Weaver: With respect to the minister, the reason I have troubles with this legislation is…. We’re not debating the Canada Marine Act. I’ll come to that.

Under the Canada Marine Act, the federal government can sell federal land in a port to a port authority, which could be administered by the province of British Columbia. In selling the land to the port authority, the Species at Risk Act and the Canadian Environmental Assessment Act no longer have any jurisdiction because the land is no longer owned by the federal government. It is now within the port authority, administered by the province of British Columbia.

My concern, therefore, with respect to an undertaking is that heavy oil or thermal coal exports would then no longer have to worry about the Species at Risk or Canadian Environmental Assessment Act implications in any development there. The problem with that is that we don’t have anything in the province of British Columbia as a species at risk act.

In essence, what’s happening in accepting an agreement like this, through an undertaking involving either coal or heavy oil, as we’ll discuss in

section 3, is we are essentially saying that we in British Columbia can exempt such development from the federal Species at Risk Act and we have nothing to fall upon here in British Columbia. We can fall upon the Environmental Assessment Act.

Frankly, with respect to what we’ve seen with Kinder Morgan and Enbridge, the province has done an admirable job in terms of representing the interests of British Columbia. But I have not seen that with respect to thermal coal, and for this reason I do have two amendments I’d like to bring here to specifically exclude from undertaking….

section 1, the first of these will amend as follows.

[ By adding the text shown as underlined:

Section 1

“undertaking” means an undertaking, or an undertaking in a class, designated for the purposes of

section 64.1 (2)(

a) of the Canada Marine Act ;

, excluding an undertaking, or an undertaking in a class, relating to the import or export of thermal coal. ]

That is the first amendment I so move.

On the amendment.

Hon. R. Coleman: I’d say first of all to the member opposite that his characterization is incorrect. We don’t end up having the ownership and operation of the port just because a port authority takes control of the property. It has nothing to do with that. It still falls under the federal legislation.

This legislation has nothing to do with that. This is strictly about allowing us to enter an agreement through regulation with regards to an activity in a port where the federal government has agreed that British Columbian laws can be applied with regards to an activity in that port. That’s it.

The rest of it…. The member is incorrect that we would end up with the authority over the ports. We would not. There are ports that are actually under federal authority in this country that are owned by the port authorities, and provincial law doesn’t come in and run those ports.

[1635-1640]

The Chair: The amendment was proposed by the member for Oak Bay–Gordon Head. It reads: “‘undertaking’ means an undertaking, or an undertaking in a class, designated for the purposes of

section 64.1(2)(

a) of the Canada Marine Act, excluding an undertaking, or an undertaking in a class, relating to the import or export of thermal coal.”

Amendment negatived on the following division:

YEAS — 1

Weaver

NAYS — 62

Horne

Sturdy

Bing

Hogg

Yamamoto

Michelle Stilwell

Stone

Fassbender

Wat

Thomson

Virk

Rustad

Wilkinson

Pimm

Sultan

Hamilton

Reimer

Ashton

Morris

Hunt

Cadieux

Lake

Polak

de Jong

Coleman

Anton

Bond

Letnick

Thornthwaite

McRae

Plecas

Lee

Kyllo

Tegart

Throness

Hammell

Simpson

Farnworth

James

Ralston

Fleming

Popham

Kwan

Austin

Huntington

Bernier

Larson

Foster

Karagianis

Mungall

Bains

Heyman

Darcy

Donaldson

Krog

Trevena

Fraser

Martin

Gibson

Moira Stilwell

Holman

B. Routley

[ Page 6463 ]

The Chair: Hon. Members, stay in your seats. The member is going to move another amendment.

A. Weaver: As I mentioned earlier, I have a legal backgrounder from West Coast Environmental Law, which talks about the passage of the Canada Marine Act, which we’re talking about with respect to the “undertaking” definition here.

That would “significantly increase the powers of port authorities, allow the federal government to off-load its responsibility over shipping in federal ports,” etc.

“The changes now allow port authorities to buy federal lands and infrastructure…from the government and then lease those lands to companies or authorize companies to use them for as long as the port authority has control over them. Once sold, those lands would no longer be federal property, meaning they would not be subject to terrestrial species protection under the Species at Risk Act.”

[1645]

Seeing as we have no species at risk act here in British Columbia, this raises some concern, which is why I move, again, an amendment, to amend as follows:

[ By adding the text shown as underlined:

Section 1

“undertaking” means an undertaking, or an undertaking in a class, designated for the purposes of

section 64.1 (2)(

a) of the Canada Marine Act ;

, excluding an undertaking or an undertaking in a class relating to the import or export of heavy oil. ]

In light of the fact that we don’t import a lot of heavy oil, that probably is moot, but certainly export is a big issue that’s facing us now.

The Chair: Hon. Members, if the House waives the time, we will proceed right away. Do we have consent?

Leave granted.

Amendment negatived on the following division:

YEAS — 2

Huntington

Weaver

NAYS — 61

Horne

Sturdy

Bing

Hogg

Yamamoto

Michelle Stilwell

Stone

Fassbender

Wat

Thomson

Virk

Rustad

Wilkinson

Pimm

Sultan

Hamilton

Reimer

Ashton

Morris

Hunt

Cadieux

Lake

Polak

de Jong

Coleman

Anton

Bond

Letnick

Thornthwaite

McRae

Plecas

Lee

Kyllo

Tegart

Throness

Hammell

Simpson

Farnworth

James

Ralston

Fleming

Popham

Kwan

Austin

Bernier

Larson

Foster

Karagianis

Mungall

Bains

Heyman

Darcy

Donaldson

Krog

Trevena

Fraser

Martin

Gibson

Moira Stilwell

Holman

B. Routley

[1650]

Section 1 approved.

section 2.

D. Donaldson: I have a question in regards to this section. I don’t know if too many people in this House or this province realize this, but Stikine has a port, the Port of Stewart, the most northerly ice-free port. At Stewart there are two privately owned and operated terminals, the Stewart Bulk Terminals and the soon-to-be-completed Stewart world port.

I have a question that relates to this

section that I hope will bring a little bit more clarity to the privately owned and operated ports and to the owners of those ports. The minister perhaps covered it in the previous section, but I’m looking for a little more clarity here.

Section 2 says that the executive council may enter into an agreement. In other words, a member of this government’s provincial cabinet may enter into an agreement on behalf of the government of B.C. “Agreements” is defined under

section 64.6 of the Canada Marine Act as “with respect to the administration and enforcement of a regulation made under subsection 64.1(1)” of the Canada Marine Act. And

section 64.1 of the Canada Marine Act basically says anything to do in a port — development, use and environmental protection of the port.

In Stewart the private owners of the Stewart Bulk Terminals, for instance, recently received a Canada environmental assessment permit for expansion. In the future if those owners of those two ports, Stewart Bulk Terminals or Stewart world port, want to pursue expansion…. And let’s say the expansion involved an environmental assessment process under federal legislation.

[1655]

Under Bill 12 who would be responsible for administering that? Would it be under the Canadian Environmental Assessment Act or the B.C. Environmental Assessment Act?

Hon. R. Coleman: Excuse me for my memory, but I don’t believe that the Stewart port is a federal port. I think it’s actually not a federal port.

This particular piece of legislation only deals with where we would want to substitute our regulatory process into a federal port — i.e., somebody wants to build, in the case of what we’re trying to get to here.

[ Page 6464 ]

We have an application for an LNG facility in Prince Rupert. We have a number of them, but only one of them is actually in a federal port at this point in time. This would allow us to bring our Oil and Gas Activities Act into that port to administer that piece of the activity in the port only. We do that by regulation and, with an agreement with the federal government, go into an agreement. That’s what this piece of legislation has to do with.

Across the spectrum with regards to ports, the environmental assessment processes, both provincial and federally, apply, depending on how they fit within those parameters of the federal or provincial law. I don’t want to get into a debate about this, because I don’t think it applies in any way whatsoever to Stewart — this particular piece of legislation. That’s what we’re trying to get to.

If you’ve got an organization…. I know I discussed this earlier with some other members. The Oil and Gas Commission is governed by the Oil and Gas Activities Act. You have, in this case, a pipeline that would come into Prince Rupert with natural gas, and you have an LNG plant. They understand the permitting. They’re doing all the other permitting upstream. They’re doing the permitting on this.

They would be able to apply their expertise because you’re basically getting an agreement where you’d add that to regulation, that we could do that in a port. Otherwise, we can’t go in and dictate nor can we manage legally the activity in the port. That’s what this legislation goes to.

Right now there are places in the environmental assessment, both federally and provincially, where we don’t have so much as a harmonization process, but we actually parallel our processes so that we make sure the highest standards are being completed in the environmental submissions and certificates and those things in whatever activity is taking place, whether it be in a port or anywhere else. There are some places where they overlap, when the two processes bounce up against each other.

But I believe, and the member can correct me — I’m pretty sure I’m right — that Stewart’s not a federal port, so it’s not affected by this whatsoever.

V. Huntington: I just want to confirm that because there is no limitation to the definition of “undertaking,”

section 2 then allows this minister or any other member of executive council to enter into an agreement of any nature regarding a federal port authority. Is that true?

The Chair: Member, would you please repeat the question for the minister.

V. Huntington: What I’m looking for is whether or not there are any limitations on this minister and any other member of executive council to enter into an agreement pursuant to Bill C-43 and Bill

Section 2 leaves that wide open, with no definition of “undertaking,” that this isn’t just an agreement we’re looking at for LNG. It does leave the possibility of other agreements being entered into without reference to this House. Is that correct?

[1700]

Hon. R. Coleman: Insomuch as it is restricted to an undertaking and agreement on a regulation, it’s gone to the same process I described earlier that we would do with the LNG. There are regulations that could be done where we could apply provincial law on other activities, if deemed necessary, with regards to our laws being applied on certain activities in ports, as I described earlier, and only, obviously, by cabinet approval with regards to that.

It’s not something that somebody can deem and make us do. It’s something that would have to be by agreement, and there would have to be a reason for it: i.e., we have an activity in a port that requires a piece of provincial legislation to have a better effectiveness on the health, safety and environmental impact of the particular project, or our provincial laws would be better managed by us. That’s when you can enter into the agreement, into an undertaking. It still has to go….

It’s a separate regulatory process. It’s not something that’s blanket so we can add it tomorrow. It’s actually separate and would have to go through the same process I described earlier.

V. Huntington: With prior approval of the Lieutenant-Governor-in-Council, is there anything that would trigger this House or public notice of the decision to enter into an agreement on any matter?

Hon. R. Coleman: Normally, this is how it would work. The federal government would say: “Are you interested in adding something, because we think your laws” — or similar things, as I explained with the LNG stuff earlier — “would be applicable in the port and worthwhile.” We would say: “Yes, we’re interested. If you want to do your process, the public process, we’ll go out and do some consultation.”

It would then come through to us. We would consult, obviously, with whichever agency within government we thought might want to be the one to be applicable — like when I mentioned the hospital earlier, or whatever the case. We’d decide whether we wanted to proceed. We would then have to go through the process to write a regulation with a drafter that basically accomplished that. It would then go to the Lieutenant-Governor-in-Council. Any agreement relative to that in the OIC would be public.

A. Weaver: With respect to an agreement that could be entered into, is there any restriction on the activities, the timing of when such an agreement can be entered into with respect to either before, during or after? Can it be done retroactively to projects that have already been constructed?

[ Page 6465 ]

Hon. R. Coleman: Nothing could be retroactive. If you had an existing facility where, through discussions with provincial and federal governments, they felt that there was a possibility to maybe apply some provincial law within a federal port — remember, we’re just talking about within a federal port — then that could possibly happen. But it’s still a new reg. It’s still a new consultation process each time this would happen, so there’s no retroactivity.

There’s nothing that can just be added arbitrarily, and if it was an existing facility…. I can’t think of an example of anything that’s out there today where that would be applicable in British Columbia.

[1705]

Obviously, if there was something down the road, and the parties decide they wish to deal with that because they wanted to apply some provincial laws, particularly with the management of that facility in a federal port, we could probably do that.

Just one earlier clarification. There are actually two LNG projects that are in federal ports. The BG project in Prince Rupert, of course, is also in a federal port. It has just not progressed as far down some of the processes with regards to it as has the project that is known as Pacific NorthWest LNG.

A. Weaver: Thank you for that thorough answer.

Coming back to what I mentioned just before the double division calls, I’m holding in my hand a legal backgrounder on Bill C-43. Now, I recognize we’re not talking about Bill C-43. But inasmuch as Bill 12, if enacted, is quite closely related to Bill C-43, I thought it was relevant to ask this question.

According to this legal backgrounder, it says that the changes that have now been enacted federally:

“allow port authorities to buy federal lands and infrastructure from the government” — that’s the federal government — “and then lease those lands to companies, or authorize companies to use them for as long as the port authority has control over them. Once sold, those lands would no longer be federal property, meaning they would not be subject to terrestrial species protections under the Species at Risk Act.”

My question is: if we enter into an agreement with the government with respect to administering an undertaking and enforcing regulations on that undertaking, would we have the Species at Risk Act in force if that undertaking is on land that is no longer federal? Is there some means and mechanism that the province could ensure that species at risk — that actually there is an assessment there?

There are certain places…. For example, you may imagine orca is one, or perhaps up in Prince Rupert there are other species at risk. I am troubled that perhaps the federal legislation will no longer apply if the land is now owned by the port authority.

Hon. R. Coleman: I am not about to get into a discussion about where federal law applies by an application the member may have from some organization that’s made comments on it. I won’t do that.

I do know that when we do an environmental assessment, both federally and provincially, on a project like we are dealing with in LNG right now, there’s an extensive piece about species, migratory birds, all those aspects — impact on wildlife, impact on fisheries — that are all part of that process to get it through to an environmental assessment certificate.

[1710]

Where we’re involved, we put that rigour to the application and the statutory authorities that are applicable there. The federal government is responsible for its statutory authority and where they’re applicable on wherever their laws apply in Canada.

A. Weaver: Thank you to the minister for the answer. My concern here is that the province would enter an agreement and potentially get into a position where the Species at Risk Act is not applicable or in force.

I have an amendment here I’d like to move, which is to amend

section 2 as follows:

[ By adding the text shown as underlined:

Section 2

With the prior approval of the Lieutenant Governor in Council, a member of the Executive Council may enter into an agreement on behalf of the government .

(

a) the province has first enacted provincial legislation comparable in power and scope to the Species at Risk Act (S.C. 2002, c. 29) , and

(

b) any and all port developments subject to the agreement that would have previously triggered a review under the Species at Risk Act (S.C. 2002, c. 29) prior to the royal assent of Bill C-43 (2014), automatically trigger a review under the legislation referenced in subsection (a). ]

On the amendment.

A. Weaver: This is a piece of legislation trying to ensure that British Columbia enforces species-at-risk legislation. If it doesn’t enforce the federal one — which it can’t, of course — it has to produce its own if it’s going to enter an agreement as per the discussion here.

B. Ralston: I’m not sure that I agree with the member for Oak Bay–Gordon Head in his analysis of the consequence of selling federal land. It would seem to me that prior to entering into any agreement, the province would do its own due diligence and make these assurances clear prior to doing so. But in the event that the member may be right — and this is an amendment that I’ve just seen literally a couple of minutes ago — I would speak in favour of this particular amendment.

[1715-1720]

The Chair: Hon. Members, it’s an amendment moved by the member for Oak Bay–Gordon Head regarding the Species at Risk Act.

[ Page 6466 ]

Amendment negatived on the following division:

YEAS — 22

Hammell

Simpson

Farnworth

James

Ralston

Fleming

Popham

Kwan

Austin

Huntington

Karagianis

Mungall

Bains

Darcy

Donaldson

Krog

Trevena

D. Routley

Fraser

Weaver

Holman

B. Routley

NAYS — 41

Horne

Sturdy

Bing

Hogg

Yamamoto

Michelle Stilwell

Stone

Fassbender

Wat

Thomson

Virk

Rustad

Wilkinson

Pimm

Sultan

Hamilton

Reimer

Ashton

Morris

Hunt

Cadieux

Lake

Polak

de Jong

Coleman

Anton

Bond

Letnick

Thornthwaite

McRae

Plecas

Lee

Kyllo

Tegart

Throness

Bernier

Larson

Foster

Martin

Gibson

Moira Stilwell

Section 2 approved.

section 3.

B. Ralston: A couple of questions about

section 3. This would appear to be the most important

section in the bill, which is very brief. There’s only one further section, which is simply the coming into force of the act itself.

This

section appears to contemplate that a federal regulation will be passed. That also is referred to in the agreement that is talked about in

section 2. In order for this

section to be operative, you need a federal regulation that refers to the British Columbia act, this act; and secondly, you need an agreement that provides for the administration and enforcement of that regulation. So without having both of those judicial or legislative acts, the agreement cannot be implemented.

Maybe that’s a little bit of a convoluted question, but I’d like the minister to respond. If that wasn’t clear, I perhaps could rephrase it.

[1725]

Hon. R. Coleman: I guess we’re getting a bit punchy over here. We’ve only been doing committee stages of bills since ten o’clock this morning. Mind you, these guys haven’t, so they shouldn’t be punchy.

Section 3 allows a provincial official such as an employee of the Oil and Gas Commission or a body such as the OGC to exercise power to perform a duty under the federal legislation, and underneath that is the “if.”

The if is that the federal government regulation refers to provincial law that enables the power or duty — which we talked about earlier, how we would do the regulation — or if the province has entered into an agreement with Canada that sees the provincial officials and bodies enforcing the federal regulation.

The member is right. The reason there’s a bit more in and around this one, although the

section doesn’t necessarily refer specifically right the way through to something, is that the federal government has done

an act. They’re going to go and do the regulation. They’re going to take it out. They’ve told us that they’re doing it in the next month or so, in the next few weeks.

This legislation enables us to enter into the agreement. The new section,

section 3, basically allows us to do that, but it also says that when it’s specific to the organizations the member referred to, it’s really about if that goes through, then we’re empowered to go ahead.

B. Ralston: In subsection (a), there is an “or” there — a disjunctive, I think, is the technical term. It requires the federal regulation to incorporate by reference the enactment of British Columbia, “or the duty is imposed on the provincial official or provincial body.”

Can the minister explain why it’s phrased in that way, given that the reference to the statute and the duty imposed would seem to be relatively simple if it’s a single regulation to set out? It doesn’t appear to be require both, because it is, as I’ve said, disjunctive.

[1730]

Hon. R. Coleman: When I was giving the member my description, that basically is the example, the OGC. He mentioned that obviously we anticipate something might be happening.

Basically, what this is, is that the federal government regulation incorporates by reference the enactment of British Columbia under the powers granted or the duty imposed on the provincial official or a provincial body. A provincial official is like a statutory authority that’s under

an act, like somebody that has statutory responsibility under something like the Oil and Gas Commission or whatever of a particular act.

The second

part is that we’ve “entered into an agreement providing for the administration and enforcement of the federal regulation by the provincial official or provincial body.” I guess the best way to describe it is we’ve begun the discussion that says we’d like the regulation because we think this will work in this particular application within a federal port to allow us to…. Let’s use liquefied natural gas facilities as an example. That then confers, by the federal regulation, the ability for us to give

[ Page 6467 ]

the power to be able to do that within the federal port.

As we’re granted that power in the enactment under which the power is granted, we now have to make sure that our legislation can be imposed and/or managed within the law relative to that and that the legislation could grant certain duties or impose powers for those provincial officials or provincial bodies that are now going to be applicable in the ports.

So that is basically saying that after we’ve entered into an agreement for that administration and enforcement of the federal regulations — it has now been changed; it has been added to so we can actually do this — we now have to make sure that we’ve given the direction, when we do our regulation, that they have a duty to complete and do the work that they’re now authorized within the port.

B. Ralston: Okay. I’m not sure. This may be a personal failing. I’m not sure I followed that entirely.

Perhaps the minister could just state as a practical matter, then…. Clearly it’s, at this juncture, focused on the Oil and Gas Activities Act. There’s an Oil and Gas Commission.

The federal regulation that’s referred to…. What’s the process by which the federal regulation that’s proposed would become public? The minister has mentioned that it’s going to be public for discussion. Is it simply gazetted, or is there a mechanism federally that I’m perhaps not aware of, other than gazetting, that would bring this regulation to light? How does that work as a practical matter?

Hon. R. Coleman: Yes, it’s gazetted, and there’s a public comment period that goes with the gazetting of a proposed regulation. So that’s the public comment period that takes place with regards to it.

This doesn’t happen unless the parties have said that they want to make it happen. It’s not like they would come along and say, “Here’s a regulation, and we want to impose it on you and go past the provincial regulatory process”— nuh-uh. This is us having a conversation with them, saying, you know, in actual fact….

The reason oil and gas is a good example is because the federal ports don’t have a lot of experience in liquefied natural gas or the export of natural gas anywhere. The fact that you bring a pipeline in and build a multi-billion-dollar facility that would make tons of liquefied natural gas and have a jetty that’s going to impact with the shipping routes and all of that stuff is not an expertise that necessarily doesn’t exist today.

In our conversations we came through this piece of the puzzle. Of course, like I said, in the future there could be reasons for other facilities to come under some sort of provincial guidance with regards to that. You could, again, go back and apply this regulation by having a period of requests to the federal government to include it, which doesn’t mean you’re going to get it every time.

In this particular case there is cooperation that says we’re prepared to go ahead with this. We need the regulation that enables us to do it. We think it’s good because, obviously, all the research, the work, the assessments, the studies, pipelines, LNG, compression and all of that has been done and is regulated today. Every other LNG facility as it comes through will be, by the changes and stuff we’ve done to the provincial legislation to accommodate this industry, including having the body that could exercise the power or perform the duty under the federal legislation…. Basically, we’ve been substituted in to do that.

[1735]

That’s why. If, in the future, governments — whichever government — had some industry.... Usually, it would probably be a new or emerging industry where there was more expertise in the jurisdiction — but only in this jurisdiction, not in any other federal port anywhere else in Canada. That’s a provincial responsibility on their own local level.

If anything were to happen in the future and there was a request for a regulation, we could go through that process. They could say no, but they cannot come and dictate to us that we have to add a regulation that says we have to go in and impose our legislation in a port. It has to come from the bottom up as far as that piece is concerned, because if we don’t agree, we don’t do it.

B. Ralston: Judging from the way in which the minister has described the process, would it be fair to conclude that the process of drafting and coming to an agreement on the proposed federal regulation takes place first? Assuming that’s the case, what would a federal regulation in these circumstances look like? Are we talking a page or two, or are we talking a very comprehensive regulation that’s 50 or 75 pages? Just what are we talking about here?

Hon. R. Coleman: We’ve been working on the draft regulation and stuff with the federal government for about a year. It’s about ten pages, so it’s not totally complex, like 50 or 60 pages, but it has enough meat around it to be able to do it. But it really is for us to be able to....

You know, the interesting thing about it.... I know there are some questions about it, but it’s actually not a bad-news story that a federal government, in cooperation with a provincial government, has recognized the expertise in a specific industry to be able to regulate it in a federal port when it’s already able to be regulated elsewhere in the jurisdiction — to be able to do that rather than them trying to think that they have to devise an entire additional regulatory process when there’s already a very highly rigorous and professional regulatory process in the jurisdiction that understands the industry.

Sometimes it’s important to recognize that a bit of harmonization and efficiency is not a bad thing, as long as you’re protecting public safety and environmental outcomes and you’re making sure the law applies to some-

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thing specific, rather than changing all the broad laws around something. This is really why that regulation would be specific to an activity with regards to this.

B. Ralston: Given that there is regulatory expertise in the way the minister has described it, is the regulation, then, based on existing British Columbia Oil and Gas Commission regulations? It would seem that certainly the LNG industry would require new regulations, but I’m wondering about that.

Secondly, are there any external models that have been looked to in terms of drafting this regulation? Obviously, as the minister is well aware, there are countries such as Australia that have considerable expertise in this. Has that been the model for drafting the proposed regulation?

Thirdly, I suppose, which federal department or agency are the negotiations between the province and the federal government being conducted with?

Hon. R. Coleman: First of all, we’ve already made changes to the Oil and Gas Activities Act, relative to LNG regulations, to fit with that. Those will all be incorporated into this reg. The Oil and Gas Commission is the one that would be given the authority, and the Oil and Gas Activities Act would be the one recognized so that we could do the implementation and the management of LNG in federal ports

[1740]

The member asked who has been involved federally. Well, it’s a relatively long list. It has basically been led by federal Transport and by the Prince Rupert Port Authority but also in cooperation and discussions with Environment Canada and Justice. They’ve been coordinating any concerns across the rest of the federal government spectrum with regards to this to get to this point in the last year.

B. Ralston: Given that this legislation is before the House and likely to be passed fairly shortly, what’s the timeline in the sense of…. There’s been a year of discussion. Is the regulation, then, ready in the sense that it could be gazetted and the period of public comment would take place fairly shortly, or will there be some further delay?

Understandably, in Ottawa things are, I would say, a bit bogged down as the government looks at an imminent election. The minister will be very familiar with that. Sometimes that inhibits government activity.

I’m just wondering what the timeline is here.

Hon. R. Coleman: The apt description of the speed of different governments was correct, I think. We have been advised by the federal government that there is intention to do it this spring. Of course, they control the timeline, because it’s their piece of the work. But they’ve told us they intend to have it done this spring, and that’s why the legislation is here — so that we would be able to move very quickly once they passed the regulation.

B. Ralston: In subsection (

b) it refers to “administration and enforcement of the federal regulation by the provincial official or the provincial body.” Is it envisaged that the cost of that administration and enforcement will be entirely within the provincial budget, or is there any federal money accompanying the regulation, I suppose, as part of the joint negotiation process? Or is that something that could be included in an agreement?

If it is federal jurisdiction, the province is taking it over, so to speak. Is there any supporting federal funds to support that administrative effort?

Hon. R. Coleman: There’s no additional cost to government, because the permitting we do with the OGC. So we’re doing, let’s say, an LNG plant. There’s a cost for covering the permitting process with regards to the size and scope of the plant. For that particular, all of the work that would be under our laws and the federal laws which it would impact it might….

There are a number of federal laws that could have impact on how the plant is built — environmental assessment federally, and all of that. That is all captured in the cost recovery permit process that we have, so there’s no concern that this would have an additional cost to the provincial budget.

B. Ralston: This may be more a legal distinction, and legal advice may be necessary. The language is, at the beginning: “…has authority to exercise a power or perform a duty under a federal regulation.” Is there a difference? Why are those two phrases chosen?

Hon. R. Coleman: This is standard language, but basically, there are two pieces. There’s a duty and a power. The duty could be that you have to enforce the law and that you have to decide the administrative penalty, or the penalty or enforcement. The performance of a duty could be inspections or other things that don’t necessarily have a duty relative to the power of enforcement.

I don’t know that I explained that particularly well, but it’s pretty much how language in legisl