Hansard Blues

Committee of the Whole –

Section C

Draft Report of Debates

The Honourable Raj Chouhan, Speaker

4th Session, 42nd Parliament

Tuesday, October

31, 2023

Afternoon Sitting

Draft Transcript — Terms of Use

PROCEEDINGS IN THE

BIRCH ROOM

Committee of the Whole House

BILL 31 — EMERGENCY AND DISASTER

MANAGEMENT ACT

(continued)

The House in Committee of the Whole (Section

C) on Bill 31; F. Donnelly in the chair.

The committee met at 1:40 p.m.

The Chair: Good afternoon, committee members. We are ready to get started. We are on Bill 31,

Emergency and Disaster Management Act. I call the committee to order. We are on clause

Clause 72 approved.

On clause 73.

L. Doerkson: On clause 73. When we were canvassing I believe it was 71, the minister kindly listed

out a number of orders. I just wanted to get clarity around one of the orders, and

that was evacuation. I know that, typically…. Well, maybe I should just ask, for clarity:

did the minister say evacuation orders?

Hon. B. Ma: Yes, that is correct, and it is under

section 77.

L. Doerkson: The reason I ask about those orders is that, typically, my experience would be that

those would be issued by certainly regional districts or communities. So it sort of

took me off the trail a little bit. Have there often been occasions when the province

would issue those types of alerts?

Now, I can appreciate that an evacuation alert might be for something more than I'm

familiar with, which in most cases has been wildfire. I have certainly seen evacuations

because of flood, but they have typically come from either a local authority, a regional

district or a city. So I'm wondering: is that something that the province does often?

Hon. B. Ma: For the purposes of being able to have a more fulsome conversation on the powers around

evacuations, there are several subsections under

section 77. Would the member like

to perhaps canvass there, where we can talk about the specific clauses under

section

77? It might be worthwhile to get to 77 in order to talk through that in detail.

L. Doerkson: That's fine, Minister. We can do that, for certain. Before we canvass the rest of

this section, though, I do want to get clarity around…. The minister was kind enough

to list a number of orders. I do have a question about clause 153 and how it may affect

this section. The reason that I'm asking is because that is the compliance clause

that, obviously, we'll canvass in great detail. But it might help to understand whether

or not these orders can be affected by that clause before we start to canvass a section.

[1:45 p.m.]

Hon. B. Ma:

Section 153 refers to penalties related to offences, which is

section 150. I believe

the member's question is whether violations under

section 73 would count as an offence,

and the answer is yes.

L. Doerkson: For clarity, as we canvass 73 through roughly 77 or so, it's safe to say that items

that are listed in these categories may be subject to those fines of $100,000 or a

year in jail. Is that correct?

Hon. B. Ma: Yes, that is correct.

[The bells were rung.]

Clause 73 approved.

The Chair: The bells have rung, so we'll put the committee into recess.

The committee recessed from 1:46 p.m. to 2:04 p.m.

[F. Donnelly in the chair.]

On clause 74.

The Chair: Good afternoon. I will call Committee of the Whole on Bill 31, Emergency and Disaster Management Act,

back to order.

L. Doerkson: I just wanted to get clarity on 74(1) where it suggests that, by order, the person

is required to give information. What information could be contemplated here?

[2:05 p.m.]

Hon. B. Ma: This would be used in cases where a person has or controls information that's critical

to another person that's exercising their power or performing a duty under this act.

Examples might be information about the location of emergency supplies or the location

of individuals who may be at risk of harm or injury due to an emergency, such as in

long-term-care facilities.

L. Doerkson: The minister is referring to interim-care facilities. Could she clarify what that

is?

Hon. B. Ma: Sorry, that was probably just me mumbling. Long-term-care facilities was my example.

L. Doerkson: Thank you for that example, Minister.

What information…? I'm assuming that this has to do with the evacuation of those types

of facilities, unless I'm wrong about that. The minister could clarify. Then, I guess,

are we talking about patient health files and those types of things? Would those be

shared?

Hon. B. Ma: I think the member is right in that evacuations could be, I guess, a scenario under

which such information could be required, but it is not exclusive to evacuations.

It could also be to facilitate the provision of supplies.

[2:10 p.m.]

As an example, a long-term-care facility may be requested to provide information about

the kinds of care needs of residents in their facility, in order to facilitate the

provision of supplies to the long-term-care facility. It could also be used to request

location information of individuals who might be at risk of harm or injury during

an emergency in case evacuations happen.

The request for information would have to be relevant to the emergency response, though.

It certainly could not be just used to gather personal information for general purposes.

L. Doerkson: I would hope not. I wondered in what situation you would be able to use that.

Now, just so that I'm clear as we go through these next couple of sections, these

demands or requirements or duties that need to be performed…. This is under a state

of emergency in the province. Or can the minister demand these items at any time?

Hon. B. Ma: Yes, these orders would be taken in the context of a state of emergency. That's confirmed

in subsection 71(1): "The minister may make an order under this Division," of which

section 74 is a part, "during the period for which a declaration of a state of provincial

emergency applies."

L. Doerkson: I can appreciate that's under a provincial emergency. What about regional situations

where we have, for instance, the situation at Terra Ridge that we've talked about.

Can the minister order under those types of circumstances?

[2:15 p.m.]

Hon. B. Ma: If the question is whether the minister can exercise these powers under the context

of a state of local emergency, where there is no state of provincial emergency, the

answer is no.

Clause 74 approved.

On clause 75.

L. Doerkson: I just want to get a bit of a better sense under these essential matters. Now, the

minister kindly laid out a few of these items earlier. I know that we've had challenges,

as I think the minister referred to earlier, with things like diesel and those types

of things that might be rationed. Or there might be other circumstances that would

encourage the ministry to act on a number of different things.

I'm just wondering if there's a history for this. I guess I can appreciate why the

minister may have this clause here. It just concerns me about the broad reach that

may be able to affect a number of different things. I mean, when we "identify supplies,

equipment or other items," I would suggest some of these terms are a little bit vague.

I just want to get a better sense of why this clause is here. Has it been a problem

in the past with getting availability to these types of products?

[2:20 p.m.]

Hon. B. Ma: I guess the first thing I would offer is…. This is not a new power. It actually already

exists in the current Emergency Program Act. It is used in cases of emergency where

essential supplies may become limited for a variety of reasons.

One example would be…. During the atmospheric river event, because of impacts to fuel

supply chains, a fuel limit was set out. A fuel purchasing limit was set. I think

the member will probably remember that. In southwestern B.C., consumers were limited

to purchasing a maximum amount of fuel at any gas station at one time.

During the pandemic, there were also restrictions used to prevent price gouging or

the predatory resale of essential supplies.

Yes. This power has been used in the past.

L. Doerkson: Those are excellent examples. I appreciate the minister's answer.

I did want to just go to (b)(i), which is "restrain increases." I do know…. We have

talked a little bit about this over the last day or two, with respect to hotels and

different types of lodging opportunities.

Now, I know that, typically…. If you're booking around a Fleetwood Mac concert or

something, you can see the ticket prices going up on those hotels.

I wonder. Will this extend to a situation where we see, potentially, people being

evacuated from one community to another, where we see shortages of lodging?

Hon. B. Ma: Perhaps for better or for worse, this power could not be used in the context of a

Fleetwood Mac concert. However, yes, it could be used in the context of a provincial

state of emergency if it was deemed necessary and if not taking that action would

pose a serious risk to public safety. But as with all uses of emergency powers, the

preferred route is voluntary compliance and other legislative tools prior to using

the big hammer that is an emergency power or an emergency order.

[2:25 p.m.]

L. Doerkson: Thank you, Minister. Just one more question on that topic.

We talked a little bit about retaining or controlling the flow of other goods and

services. Is this something that the ministry could demand of those lodging properties?

Could they demand, under a severe and serious situation, that they preserve rooms,

etc., for people that might be evacuating from other communities?

You're leaving Williams Lake and heading to Kamloops, if that was the natural place

for evacuation. If we had a situation where ESS was opening up, for instance, at the

hockey arena and in the park and those items….

Could you demand of those hoteliers and lodging properties that they remain available

for evacuees?

Hon. B. Ma: Yes.

L. Doerkson: I wanted to understand, with respect to item (d)…. I think I'll have some colleagues

ask a couple of questions, under the next clause, about this. Under (d), where it

suggests that we would "require a person to provide a service or give assistance…."

My question is around "assistance." What could that mean, and what could result if

a person were not to provide assistance? I guess I'm just looking for a couple of

examples or just to understand better what that might suggest.

[2:30 p.m.]

Hon. B. Ma: I heard three questions from the member, and I'll attempt to answer each one. One

is: what does it mean to give assistance during response? It's not specifically defined

in the legislation. So it just has its ordinary meaning. It basically means to help

with the response and to be qualified to provide or give the service that we are seeking

in that response.

The second question is: is refusal to abide by orders issued under this

section considered

an offence? The answer is yes. It is an offence under

section 150 and carries the

penalties under

section 153.

An example that we can offer: let's say there was a catastrophic event, and we required

everyone who was qualified to provide medical assistance to immediately report to

support response in that emergency. Certainly, wherever possible, we would seek voluntary

compliance.

However, in a truly catastrophic emergency — I'm thinking, as an example, a significant

earthquake — there may not be time to seek voluntary compliance. It may be more expedient

and prudent to simply issue an order and say all registered doctors and nurses are

now enlisted to provide support and give assistance during this response to this catastrophic

emergency.

L. Doerkson: With respect to assistance, I think I heard the minister suggest that if they were

qualified…. I think that phrase does actually refer to that as well.

In the case of early response to wildfire, where we have had individuals that have

attempted to assist in stopping a fire in its earlier stages, and there have been

questions on the landscape about whether that action is appropriate or not…. I know

that there's been much debate and discussion about it, and I don't want to go through

that here.

Under this clause and under the fines that may be administered, if you happen to be

someone that is or has contracted to B.C. Wildfire in the past and, in this case,

has attempted to assist in a situation like that and has been stood down, I guess

it just seems contradictory to what this clause is suggesting. It's suggesting that

if you're able, you should do it; that not only should you do it, but you ought to

do it, because you could be fined for not doing it.

It just seems contradictory to what's happening on the landscape a little bit. So

I wondered if the minister could comment on that.

Hon. B. Ma: There was no order issued during the 2023 wildfire season. For that kind of assistance

to be issued is in the context of this particular section. The ability for a minister

to issue an order to require a person to provide a service or give assistance of a

type that the person is qualified to provide or give — that power was not used during

the 2023 wildfire season.

L. Doerkson: I didn't suggest it was, Minister. I was asking…. In this case, it is suggesting that

people do what they've traditionally been asked not to do.

So going forward, if you have the skill set or have worked for B.C. Wildfire in the

past, does this clause then demand that you provide assistance in dousing a fire in

its early stages? That has been questioned a number of times.

[2:35 p.m.]

This clause actually says: "require a person to provide a service or give assistance

of a type that the person is qualified to provide or give."

My question is around fires that have…. You know, White Rock Lake…. I could name a

number of them, including the Flat Lake fire, where experienced people have been asked

to stand down. This clause actually suggests quite the opposite. It suggests that

you must get involved and you must try to assist or else potentially face very serious

fines. I want to get clarity around that.

Hon. B. Ma: Yes, it is possible to issue an order under this

section that requires qualified persons

or persons with certain qualifications to assist in response, including wildfire response.

It would only apply if that order was actually issued.

L. Doerkson: Which order would the minister be referring to? Are you talking about a provincial

disaster? I'm not sure which order the minister is referring to.

Hon. B. Ma: Under

section 75, it notes that as per the earlier

section 71, under a provincial

state of emergency, "The minister may, by order, do one or more of the following…."

Subsection (1)(

d) includes "require a person to provide a service or give assistance

of a type that the person is qualified to provide or give."

It is possible for the minister, during a provincial state of emergency, to issue

an order that requires a person to provide assistance or give assistance of the type

that the person is qualified to provide or give.

That requirement does not simply exist as a matter of course. It is a specific emergency

order power that is available to the minister.

Clause 75 approved.

On clause 76.

D. Davies: I want to thank my colleague from Cariboo-Chilcotin for allowing me the opportunity

to ask a few questions. I want to commend him for all the work that he and the member

for Vancouver-Langara have done. I also want to thank the minister for all the contact

that she did reach out with this summer during the wildfires. It certainly was appreciated.

Obviously, regarding Bill 31, I do have a few questions on the next couple of sections.

Just from watching the debate over the last couple of days, it's going to be very

hard to support this bill. It's just too many holes and issues and, generally, the

incompleteness of this bill.

Within 76, the land and other property…. Over the past number of years, we've seen

a deterioration of a landowner's rights and the challenges around that. We've been

hearing, loud and clear, from many, many of my constituents across Peace River North

— and my colleague beside me here from Peace River South, and other areas in rural

B.C. — that again, really see this as an assault on their land rights.

If the minister could clarify: what is the difference, within 76, with what is already

happening now under a state of provincial emergency to what is being proposed here

section 76?

[2:40 p.m.]

Hon. B. Ma: Thank you to the member for Peace River North for that question and the comments as

well. I think that they're really important. It emphasizes why the use of a declaration

of a state of emergency is done so cautiously.

When the member is speaking to other colleagues in his caucus about why declarations

of states of emergency aren't called too early, that is the tension.

It's that when we declare a provincial state of emergency, it opens up extraordinary

powers to government and the minister. It is necessary for us to be prudent about

their use and ensure that a good balance is being struck between actions taken to

support public safety and the civil rights and liberties that all Canadians expect,

deserve and are entitled to.

[2:45 p.m.]

To the member's question on

section 76 in particular, this

section does carry over

the powers of the minister that exist currently in the EPA, with two distinctions

that I'll highlight.

One is that sub-subsection 76(1)(

g) is new. That is the ability to, by order, "require

the owner of a structure to (

i) have any damage to the structure assessed, and (ii)

give the results of the assessment to the minister or a person in a class of persons

specified by the minister."

The other distinction — between

section 76 within the EDMA, versus the current powers

that are granted under the Emergency Program Act under

section 10(1)(d) — is that

we've scaled back and provided more clarity about what the minister can or cannot

do with personal property.

For instance, under the EPA, I believe the clause had read something along the lines

of: a minister can "acquire or use any land or personal property." And "acquire" in

the

Interpretation Act has a broader meaning that potentially included permanent acquisition

of land.

Under the EDMA, we have rolled that back and more specifically stated that the minister,

by order, may "appropriate, use or control the use" of any property but only during

the provincial state of emergency. So it cuts out questions around whether, under

a state of emergency, a minister could permanently take over personal property.

D. Davies: Thanks, Minister.

Just to clarify and to follow up on my colleague's question earlier, on a provincial

state of emergency, does 76 fall under local states of emergency as well?

Hon. B. Ma:

Section 76 specifically refers to the minister's powers during a provincial state

of emergency. Under

section 107, local authorities do have similar powers under a

local state of emergency.

However, those states of emergency don't cross. A minister does not have these powers

under a local state of emergency. A minister has these powers under a provincial state

of emergency, and a local authority has

section 107 powers under a local state of

emergency.

D. Davies: Just to go back to

section 76. You had mentioned civil rights and liberties — which

I think are very important at any time. I understand that during a state of emergency,

the ministry has always been able to cross lands to access a fire, or those pieces.

But 76(1)(

d) says: "prohibit entry into any structure or onto any land by any person."

I just wonder. To me, I think this looks different now.

Whereas in the past, if a

farmer didn't want to leave their land and they wanted to protect their interests,

their farm, their animals and such, they did not have to leave. What I see in this

is that this prohibits it and will now trigger, I believe, sections 150 and 153, which

have the $100,000 fine and jail time. Is that how I'm to read this?

[2:50 p.m.]

Hon. B. Ma: What the member is referring to, I believe, is in the context of evacuation orders.

Section 76 is not where evacuation orders would be issued. It would be under

section

77, which is the next section. So we'll just park that piece for now.

Having said that, the member is correct. Rather, I have to correct myself.

Section

76(1)(

g) is new to the EDMA and the rollback on the permanent acquisition of properties.

Section 76(1)(

d) is also a new line in the EDMA. That being said, the power that this

grants the minister would have been possible under the current EPA as well. The EPA

allows for all acts necessary to be taken.

This provision is really a commonsense provision. If there was a structure or land

that was deemed unsafe to be occupied or unsafe for people to access, this power would

allow the minister to, by order, prevent people from accessing that property or structure.

[2:55 p.m.]

D. Davies: I do want to confirm…. Clause 76(1)(

d) is new. It basically is, in fact…. If someone

does want to stay and protect their property, their home — it's deemed unsafe — they

will now be facing fines and jail time. Is that correct?

Hon. B. Ma: For greater clarity…. That is currently the case. It is even currently the case that

a person who has been ordered to evacuate from an area must evacuate. There is no

legal provision that grants property owners the right to stay behind during an emergency

evacuation order on that property, unless the local authority or the authority issuing

that evacuation order has specifically carved out that class of person from not being

affected in the order.

That's, again, under

section 77. This provision is less about evacuation orders and

ordering people out due to an imminent wildfire and more a power that allows the minister

to prohibit entry into a structure.

Let's say you have a…. Actually, we have seen this situation in the cities, where

we have a derelict building that is unsafe to occupy. If a state of emergency was….

That would be an example of where we might issue an order to prevent entry into that

building, although I would say, in that situation, they would be more likely issued

by a local authority, under local powers, than the province.

L. Doerkson: With respect to (g), those powers already exist at regional district levels and local

authority levels.

I guess the question is: why would the province need this? I know in the case of Terra

Ridge, which, of course, the minister is very familiar with, the order to leave the

four units that had been damaged due to a landslide there…. That order had come from

the city of Williams Lake.

Certainly, it seems peculiar that the province would need that. Local building codes,

all of those things, of course, are managed by the local authorities.

I guess the question is…. I can appreciate…. I think the minister said that both (

d) and (

g) are new to this act. Where would the province have any sort of responsibility

with respect to buildings that would fall outside of local building codes, local disasters,

those types of things?

This is saying…. Terra Ridge is a perfect example of where people have been asked

to leave their structure because it's deemed to be unsafe. That's happening by a local

authority with, obviously, the province backing them up.

I guess the real question is: when has this been necessary, and why are these two

clauses here?

[3:00 p.m.]

Hon. B. Ma: There are a few scenarios that I can offer where it would benefit the public for the

province to have access to these powers. One is in regions like the Stikine, which

has no local authority. So during the wildfire season, it was actually I who had to

sign off on a state of emergency in the Stikine region because it's an unincorporated

area with no local authority to do so.

It could also be used in cases of catastrophic emergencies. So it can be a matter

of scale, a catastrophic situation with impacts across multiple jurisdictions where

provincial intervention is needed to support response. It could also be used in the

case where a local authority was unable to act as a result of a catastrophic event.

So the local authority's governance structure was decimated.

We'll leave it at that. We don't have to get too dark here.

M. Bernier: Sorry for smiling at the minister's last comments there.

A couple of things before I get into the meat of a quick question kind of pertaining

to what the minister's answers have been to date on this section, I just want to highlight

again…. I know this was canvassed earlier, but I just want to get it on the record

while I'm up here right now.

The minister is well aware, because I'm sure she has to have been receiving a lot

of the same emails and concerns as the rest of us — myself and my colleague from Peace

River North, specifically.

Of course, the Peace River regional district in our area has written to the minister,

quite upset with some of these changes but, more importantly, upset with the timelines

requesting feedback by December 31. They have asked the minister and the government,

to say that, you know, this is downloading…. They don't have the capacity to deal

with a lot of these things so have asked for funding for the regional district in

order to achieve some of the feedback requirements that the government has asked for.

I'm just throwing that out there, again, because from what I understand, the regional

district has not received an answer. And the regional district and others in our region

have specifically on

section 76…. This is why it's a concern for many of them.

Back to the minister's acknowledgment just now that under 76(d), this is a new addition.

One of the challenges and the feedback that my colleague and I are getting is the

lack of definition and lack of clarity around the intent of this

section and when

it could be used.

I think the minister should be able to acknowledge that there's been a lot of angst,

especially in a region like the Peace region where they feel the government has overstepped

their rights of taking authority and rights away, whether it's from the regional district

or people who live in that area. We've seen that through some of the forced changes

with no consultation around the caribou reduction, backcountry closures, some of the

issues pertaining to some of the First Nations discussions happening in our region

with no discussions back with local governments.

The minister must realize that that's why there's a lot of people my colleague and

I keep hearing from that are very reluctant and, frankly, scared about what this government

is intending.

Now that the minister has acknowledged that (

d) is new, I have to say I'm a little

perplexed. I'm hoping the minister can, again, quantify this for me, because one of

the examples she used was a derelict building maybe in the Lower Mainland.

[3:05 p.m.]

If that's the example, I'm quite perplexed about why that would be in the Emergency

and Disaster Management Act, for this minister to say that she has the rights under

section 76 now to worry about a derelict building somewhere. That should fall under

local government, under health authorities and others.

Maybe I'll start by asking the minister to clarify why she would use that as an example,

because that does actually lead to further questions on the rules, responsibility

and the authority that this minister looks like she's trying to have for herself and

this government, which, she hopefully would understand, with those kinds of examples,

puts a lot of fear and angst into people. So maybe we'll start with the minister,

if she could again clarify why that would be used as an example under her authority.

[3:10 p.m.]

Hon. B. Ma: I want to acknowledge the member for Peace River South again and his comments on the

use of emergency powers provided under the Emergency Program Act and, in the future,

under EDMA. They are broad in scope, and they do provide for the ability of government

to take extraordinary measures that would not otherwise be taken, except for a state

of emergency.

Again, this is why the decision to make a declaration of a provincial state of emergency

is done in such a cautious and reserved way and only when truly needed. I think that

that will be important to remember. Again, not the member himself, but certainly other

members of his caucus have called for provincial states of emergency to be declared

prior to the two situations meeting the test of needing one.

That is because we do have to balance civil rights and liberties and freedoms and

ensure that when we are making a declaration of a provincial state of emergency to

open up emergency powers in the way that these acts do, it is something that is necessary

for the maintenance of public safety and security and not something that is done flippantly.

Absolutely, I understand the member's concerns about that and understand the gravity

of the use of provincial states of emergency and the powers that those declarations

afford.

Now, I do apologize if my example earlier was not helpful. I've been trying to use

hypothetical examples in order to try to illustrate the various measures and clauses

of the bill. Perhaps it would have been more prudent of me to combine that example

with what I had said earlier around the scale of emergencies.

The intervention or the use of provincial orders that look similar to the powers that

are available to local authorities — I think it's really a matter of scale. On a small-scale

emergency, local authorities could likely handle one or a few damaged buildings. However,

if an emergency is of such a large scale, multiple jurisdictions across regions could

be beyond what a local authority could manage or handle because of capacity issues

or otherwise.

For instance, if there was a catastrophic earthquake across a large

section of the

Lower Mainland, it may require provincial intervention to issue orders, because it

may exceed the local authorities' capacity to manage the situation. So the province

could step in, on request or as required.

To the member's comments on the public engagement, currently…. I should note

section

76 is actually not a part of the public engagement process that is currently open.

The current public engagement is on the development of regulations on post-disaster

financial assistance and local authority regulations,

whereas 76 is exclusively a

section around the powers of the minister on behalf of the province.

[3:15 p.m.]

M. Bernier: Thank you to the minister. I also want to acknowledge her stamina in the situation.

This has been going on for quite a while, and I hope…. The intent of this is not to

make it look like this is any personal attack, I guess, at the minister, but more

trying to quantify the actual wording and the intent of what the minister is trying

to accomplish.

The reason why I and my colleague from Peace River North are focused on this specific

section is because of, again, as I said in the onset, the lack of definition and the

lack of clarity around what the minister is proposing with

section 76, especially

in some of the wording where it says: "prohibit the entry into any structure on any

land by any person."

Taking a step back, I acknowledge the minister's commentary around emergency measures

under an extreme circumstance. I think most people understand that in an emergency

situation, they want to do everything they can to keep themselves, their families,

their neighbours safe. But also in many circumstances, their life revolves around

— in our area, let's say — their farm.

I will maybe use a specific example, if the minister can indulge me on this. Because,

again, people are trying to understand in our region the overreach of government's

intent, which I am looking for clarity from the government to correct myself or maybe

explain, so we can actually do our due diligence and go back and explain it to people

in our ridings.

An example, for instance, that I want to use is that this spring we had the evacuation

of the community of Tumbler Ridge. The forest fire in that region got within a couple

of kilometers. The minister is very well aware of this.

I also want to acknowledge, as my colleague didn't thank her for her personal phone

calls and checking in on the community and making sure we had what we needed. That's

not something we've seen by many other ministers or the government, so I want to acknowledge

that because it is actually appreciated. We should all be working together to ensure

people are safe.

In this specific situation, if it wasn't for the change of the wind direction, we

could have lost an entire community like we did in Lytton. The fire came within, basically,

a kilometre or two of Tumbler Ridge. Understandably, people were evacuated.

Now, the example I want to use, if the minister can use this example to explain this

piece of legislation, there were people who did not follow the evacuation order, that

stayed behind. They got their loved ones out but stayed behind to do everything they

could to protect their family's belongings and their home. And in some cases, that's

all that people have in their life, and they were there trying to protect it.

We had the emergency responders that were staying behind, which would be…. I assume,

under all emergency orders, that they are in a situation where they are obligated

or at least permitted to stay behind. But using this piece of legislation and the

example I just put forward for the, I'm going to say, half a dozen concerned community

members that stayed behind in the community of Tumbler Ridge that were not part of

emergency services but were doing their best to protect their community because they

wanted to do that….

Under 76…. I am assuming under this, and I know in previous acts as well, the minister

is saying that they have to leave. They don't have a choice. The minister is giving

them the order that they have to. Then as my colleague said, interesting how that

fits into

section 150 and 153, which I know we'll get into later.

If somebody refuses to follow the direction of this minister and say, "You know what?

I'm willing to take the chance. I want to do everything I can to protect my farm,

to protect my cattle or horses, to protect my house," does that mean that they have

now opened themselves up to thousands of dollars worth of fines and a year in jail?

I want the minister to, if she could, try to bridge that gap, because a lot of things,

when it comes to the punitive damages or the fines and jail time that we'll be discussing

later, do reference things that we're talking about right now, in my understanding.

[3:20 p.m.]

Can the minister explain whether I'm wrong, or if I am right, how do we explain that

to people, who, truly, at the end of the day, are just wanting to do everything they

can to protect their personal belongings, knowing they might be taking themselves

into a hazardous situation? As we know, some people are willing to do that because

they don't want to risk losing everything.

Can we maybe have a dialogue, and the minister can explain to me if that's the situation?

Are they contravening, and would they be fined — or jail time?

Hon. B. Ma: I think that we might be conflating some sections of the bill here, and I'll try to

draw the connection for the member, based on his example.

In subsection 76(1)(d), an order would be unlikely to be issued under that

section

for what the member describes because there would already be an evacuation order issued

by the local authority.

This would be kind of a double order doing the same thing. It's unlikely that an order

would be used in that way. And 76(1)(

d) would be an order that would be used outside

of a local authority evacuation order of the kind that the member described.

The evacuation order, in this example, would have been issued by a local authority.

In EDMA, it would be under

section 107, local evacuation orders. Under

section 107,

ignoring an order to leave would be considered an offence. It's considered an offence

right now under the EPA, and it will continue to be considered an offence under the

EDMA. So it's an offence under

section 150 and fines by

section 153.

It is already the case right now that if an evacuation order is issued on an area,

unless you are written into the order as part of a specified class of people who may

stay behind for a number of reasons, you must leave. That is the law. It is not an

option.

[3:25 p.m.]

That being said, I completely understand why people are reluctant to leave. We have

heard, from some stakeholders, feedback around providing greater assurance around

evacuation systems, like permitting systems to allow certain classes of people to

return to their properties to take care of cattle or to take care of their livestock

during an evacuation order.

Although that is not directly related to

section 76, I bring it up to acknowledge

the anxiety that does occur during an evacuation alert and evacuation order and the

desire of government to improve communication and trust around those evacuation alerts

and orders.

For those who stay behind, it is important to note that they are not only putting

themselves at risk; they're also putting at risk the responders who are responding

to the situation. Potentially, having people stay behind in evacuation order areas

actually limits the kinds of tactics that can be used to address an emergency situation.

For instance, during the wildfire season, when people stay behind, responders and

volunteers like search and rescue volunteers who go door to door to try to evacuate

people will return to those properties over and over to try to convince residents

to leave. So they're not just putting themselves at risk; they're also putting at

risk the first responders.

We also saw, in some situations, that having people in evacuation order areas, particularly

in areas that are close to wildfires that are approaching, prevents the B.C. Wildfire

Service from using certain tactics like back burns or a direct attack with aircraft

because they know that there might be people there. So it actually increases the risk

for everyone involved.

All of this being said, we certainly did see, in the 2023 wildfire season, an opportunity

to better incorporate trained and qualified personnel, in-community, as part of wildfire

response. That is work that the task force right now is exploring.

To the member's question — going back to the EDMA and what's in this legislation —

section 76 is not quite relevant to the example provided. That example is likely more

relevant to

section 107, local evacuation orders.

Clause 76 approved.

On clause 77.

L. Doerkson: Thanks for the answer there. I hope to better understand the evacuation process in

77. I didn't necessarily have a question about this until the minister referred to,

potentially, Skeena and other areas throughout the community.

I guess I have two questions. With respect to that evacuation order, for whatever

it may be, and also with respect to local evacuation orders, does this legislation

extend to them? I guess my question really is: in any case for evacuation orders that

have been ignored, can you receive the fine under 153?

[3:30 p.m.]

Hon. B. Ma: Refusal to comply with an evacuation order, issued by the province or local authority,

is considered an offence under

section 150 and is subject to the penalties set out

section 153. However, it's worth noting that the penalties set out in

section 153

are maximums. They are not minimums or even what a ticket would look like.

Ticket amounts are in a regulation called the Violation Ticket Administration and

Fines Regulation under the Offence Act, under the Attorney General. So right now Emergency

Program Act fines are set out in that regulation.

L. Doerkson: Thank you for that, Minister.

I want to canvass the evacuation process a little bit. Is there ever a time where

the province's order may supersede a local order? Maybe let me rephrase that. Regional

districts, generally speaking, take their advice, for instance, from Wildfire or other

authorities. My question is: if a regional district were reluctant to issue an order,

might the province step in, in that case, and issue an order?

Hon. B. Ma: Yes, I wouldn't say that it is something that would happen commonly, but it is possible,

if necessary, for the minister to issue an evacuation order in that context. Keep

in mind that that power is only available if a provincial state of emergency has been

declared.

L. Doerkson: I appreciate that, Minister.

I just want to get a better sense, under these orders that might be issued, who might

carry out compliance for you. Would it be local authorities? Who would actually manage

this?

[3:35 p.m.]

Hon. B. Ma: EMCR does not have an enforcement arm within our ministry. We would be relying on

other bodies to enforce orders. The Violation Ticket Administration and Fines Regulation

sets out who has authority to issue violation tickets. It could include police, conservation

officers, and so forth.

We can certainly dive into this more deeply when we get to the enforcement provision

section of the act. For the purposes of providing a high-level response now, that

would be the response. Then for enforcement of local authority orders, the local authority

would be responsible for enforcing their orders at that level.

L. Doerkson: Actually, the question was whether or not an order by the province might supersede

something at a local level. Could a regional district be ordered by the ministry to

do certain things? I know the pressure on regional districts. They are very concerned,

for all the reasons that the minister has mentioned, about local states of emergency

and provincial states of emergency. They're very, very concerned when they actually

call an evacuation of an area.

I guess my question really is: could the minister demand that a local authority do

something, whether it be in an order to evacuate or something else?

[3:40 p.m.]

Hon. B. Ma: Thank you for that. Sorry, I must have lost track of the questions. I thought that

we had canvassed this a couple of questions ago, but I will repeat the response and

provide clarification, given the member's last iteration of the question.

It is possible for the minister, under

section 77, to issue evacuation orders during

a provincial state of emergency, including in an area where a local authority would

theoretically also have that power. So if a local authority refused to issue an evacuation

order that was needed, the province could step in and issue an evacuation order for

that area.

The latter part of the question being: can the province or can the minister force

a local authority to issue an order? We do have a provision in the act that allows

the minister to prevent a local authority from exercising power but not to force them

to exercise an emergency power.

And with that, Chair, I'm hoping we might be able to have a brief recess.

The Chair: Absolutely. The committee will take a short recess and come back at four o'clock.

The committee recessed from 3:42 p.m. to 4:01 p.m.

[F. Donnelly in the chair.]

The Chair: All right, Members. Welcome back. I call Committee of the Whole on Bill 31, Emergency

and Disaster Management Act, back to order. We were on clause 77.

L. Doerkson: One last question on clause 77, and that is with respect to (c), which is: "authorize

the removal of personal property from the area." I just wondered if the minister could

clarify what that would refer to.

Hon. B. Ma: Subsection 77(1)(

c) would allow the minister, by order, to authorize the removal of

personal property from an area. An example might be if there was personal property

blocking access to a road or an area where emergency response activities needed to

happen.

Clause 77 approved.

On clause 78.

[4:05 p.m.]

L. Doerkson: We've discussed a little bit about orders with respect to hotels and that kind of

thing. Under this clause, there is an opportunity for the minister to prohibit travel,

which I don't think is a new power.

I'll give an example. Last year when we saw travel restrictions to the interior of

the province — obviously, the Interior is a pretty vast area — of course, it had a

pretty dramatic effect on, certainly, resorts in the South Cariboo that had an opportunity

for business. I think the order really was with reference to areas like the North

Shuswap, Kelowna and areas like that.

My question: under this order, has the minister contemplated any of that with respect

to issuing orders for such vast areas?

Hon. B. Ma: All of the powers under

section 78 would have been permitted under the Emergency Program

Act. However, we've taken the step of basically spelling out what those powers and

those orders actually are under the EDMA. We provide greater clarity that these powers

do exist. However, they would have been permitted under the Emergency Program Act

previously, so they're not holding you. In terms of travel orders and restrictions

and any emergency order, it is always our intent to only issue the order to the scope

that is required.

For instance, the travel restriction this summer to prevent non-essential travel for

the purposes of staying in short-term accommodations — I believe that was the phrase

that we had used — was very targeted at travel for the purposes of staying in short-term

accommodations.

[4:10 p.m.]

It was targeted to specific communities as well, and maps were provided for the boundaries

of where those orders applied. Wherever possible, orders should be only as needed,

and that includes geographically as well — only in the areas that are needed.

L. Doerkson: Thanks for that answer, Minister, because this one is definitely a big concern when

orders do come through that are vague. We've had them. Whether they be northern B.C.

or whether they be the Interior — obviously that is a very big area. So I can appreciate

that there are maps that may be published.

But when broad statements are made by either this ministry or Wildfire or anybody

else — it doesn't matter who says it — it has a very serious impact.

I do know that, like I said before, the South Cariboo was affected in a massive way.

I mean, they lost a ton of business in the South Cariboo, where there was no fire.

Anyhow, I'll move on from that.

The next phrase is referring to businesses that might be prohibited to act. I wondered

if I could get a bit of an example of what the minister might be referring to with

respect to that clause.

[4:15 p.m.]

Hon. B. Ma: I'll start off my response by acknowledging how this kind of power, even though it

already currently exists…. Just by spelling it out, I understand that it can create

anxiety amongst business owners and in the business community that an order like this

could be used in a certain sector or on a business.

I do want to reiterate my caveat that emergency orders are really measures of last

resort. They are used when necessary, when not taking that action could result in

a significant public safety concern or impacts to community. They are something that

that we do not — certainly, I do not — relish using.

I want to reaffirm that is the case, and it is not something that we want to use.

It is only available as a tool in case it must be used. So an example that might come

up, especially in the context of the extreme provincial drought that we are seeing

right now, it is possible for an order to be issued under this

section to prohibit

certain water intensive, non-essential businesses to cease operation in a certain

geographic area.

We can think of a number of potential examples. I'd prefer not to name them. I don't

want to cause anyone panic or alarm because we're not currently contemplating the

use of this power. But that is an example of the circumstances under which something

like this could be used.

L. Doerkson: I can appreciate and I'm glad that we're not going to talk about specifics, particularly

within today's timeline.

I guess, as the minister was relaying that information, that I did think back to a

time when, for instance, the province, with respect to transmissible diseases, closed

businesses like gyms and things like that. Of course, that was a challenging time.

I'm totally in agreement that yes, the province has always had this power.

[4:20 p.m.]

What I'm concerned about is that now this is different in the sense that they can

be fined for it. I'm not sure if that power existed before.

If I'm understanding correctly, these are compliance issues that may be fined under

153. Could the minister confirm that? If the orders that the minister was just referring

to were ignored — for instance, in the case of the watering or in the case that the

government has seen fit to close down a gym that chooses to open anyway — I think

there were actually some fines that were imposed at that time, but they were much

smaller. They were, I think, $2,500 or so.

Now we're talking about

an act that introduces a fine of up to $100,000 and certainly

jail time, as well. I can appreciate that the minister has suggested on a number of

occasions that this is a final act when people have not voluntarily complied, and

certainly that this is not the first thing out of the toolbox to make people comply.

I do know that there was much frustration in some of those closures with respect to

gyms and other businesses. To be clear, these are compliance matters, and if I'm interpreting

it correctly, they could be exposed to the fines that are listed in 153.

Hon. B. Ma: Yes, contraventions of

section 78 are considered offences under

section 150 and subject

to the penalties of

section 153, as they are currently under the Emergency Program

Act as well.

L. Doerkson: I thought that they might be offences. The thing that I guess I didn't quite understand

is that I don't think we ever had fines of this size before. Now, maybe I'm wrong,

and the minister can correct me, but I'll move on. I just wanted to get clarity with

respect to the closures, the hierarchy of what might be happening in Bill 31.

My question is that…. Gyms, businesses like that, restaurants that were ruled to close

or to dining outside during transmissible disease all came through the Minister of

Health, if I'm not mistaken, and through different means. They were health orders

that may have been issued by Dr Henry.

[4:25 p.m.]

In this case, does the ministry now assume those types of responsibilities for those

types of orders, and will it be this minister that makes those orders?

Hon. B. Ma: To the member's comments about fines, I'll reiterate that

section 153 sets out maximum

penalties and maximum fines. That might help the member in understanding that piece.

To the member's question, the answer is no. The public health officer will continue

to have their response powers under the Public Health Act.

L. Doerkson: Then would the compliance to 153 move to that ministry as well, if it comes through

a health authority?

[4:30 p.m.]

Hon. B. Ma: The penalties and fines outlined in

section 153 relate to the offences laid out in

section 150, which apply to the EDMA only. So it applies to the EDMA.

L. Doerkson: I think the last question on this

section is with reference to any sort of support,

business supports. Has the ministry contemplated, through those orders or closures,

what might be available for businesses that are affected by them?

Hon. B. Ma: There is nothing in the EDMA that speaks to that.

L. Doerkson: I'm aware of that. I was asking if the ministry has contemplated that. You know, if

the ministry takes the opportunity to close, for instance, businesses in light of

wildfires or potential evacuation zones or any of the above, has there been any thought

to any sort of business supports for that?

Hon. B. Ma: I would say that although it is not contemplated in the EDMA — so the legislation

itself is silent on this — it certainly is something that government regularly considers.

Both in the…. Well, just taking a look at all of the impacts of all of the emergencies

that we have faced.

Depending on the context of the impact sector, different ministries will be engaged

in those kinds of conversations.

For instance, when it comes to tourism, I know that the Ministry of Tourism, Arts,

Culture and Sports has launched a…. I'm sorry. The phrase escapes me. They're launching

a promotion to encourage tourism into areas that were affected by the wildfire.

In the context of impacts to ranchers and farmers, the Ministry of Agriculture has

been working closely with stakeholders to understand that and how best to support

them.

I guess operationally or policy-wise and as a government, certainly, it is something

that's regularly considered. But it is not laid out, one way or another, in the legislation.

Clauses 78 to 81 inclusive approved.

On clause 82.

L. Doerkson: Under this clause, I want to get a better sense of what the term retroactive might

mean and what's being contemplated here.

[4:35 p.m.]

Hon. B. Ma: This provision enables the Lieutenant-Governor-in-Council to backdate a regulation

but not to a date prior to the declaration of the state of provincial emergency.

An example of this — and I believe it actually happened in the atmospheric river event

— is, let's say, if dairy farmers are impacted by floodwaters and that flooding inhibits

regular inspection of milk according to a predetermined schedule. A regulation could

be authorized to have the effect of ensuring that those dairy farmers are not out

of compliance, recognizing the extraordinary state that they are in.

Under

section 82, if we did not realize that this regulation was required until several

days into the event, that regulation could be made retroactive to the start of the

declaration of the state of emergency and cover off dairy farmers who might have otherwise

been out of compliance for the first several days of the declaration of the state

of emergency.

L. Doerkson: I am confused by that answer, Minister. My apology. I would love for you to just clarify

that a little bit.

It looks to me as though, when I read this, we could retroactively do almost anything

that the minister wanted, to a prescribed date or whatever. But you're referring to

something, obviously, that happened a couple of years ago. I'm just trying to understand

what the intention is. My apologies. I know it's late in the day, but I didn't quite

understand. If the minister would be kind enough to try that again.

Hon. B. Ma: No problem. It was probably on my end, so let me try this again. The retroactive application

of response powers — it would have to be, first off, approved by the Lieutenant-Governor-in-Council.

So this is not a power that exists just to the minister. It would have to be approved

by cabinet.

Give me a second here. Okay. Retroactive regulation–making authority is provided to

give full force and effect to the provisions of a regulation prior to the date when

the regulation was introduced. So….

The Chair: Minister, I think you muted yourself. We didn't catch the last little bit. If you

wouldn't mind repeating that. Sorry.

Hon. B. Ma: So retroactive regulation–making authority is provided to give full force and effect

to the provisions of a regulation prior to the date when the regulation was introduced.

[4:40 p.m.]

For example, during an emergency event like flooding, dairy farms may be impacted

by flood waters. Dairy farms normally are required to have regular inspection of milk

according to a predetermined schedule, but that may be inhibited as a result of the

floodwaters. Without a regulation that basically gives them a break from that requirement,

all of these dairy farmers would be deemed to be in non-compliance.

The Lieutenant-Governor-in-Council would be authorized under this

section to make

a regulation retroactive to a certain time period, which would have the effect of

ensuring no person is out of compliance.

Let's say a provincial state of emergency is called on the Monday. It is for extreme

flooding. You have a number of dairy farmers who are required by law to have regular

inspection of their product, and because of the floodwaters, they're not able to get

that inspection done. There's a lot else going on, and the inspectors aren't able

to get to the farm. But because of everything that goes on during an emergency, it

isn't until the Friday that it is recognized that we need to address this, or else

we have a whole bunch of dairy farmers in non-compliance of the regular law.

So on Friday, an order, a regulation is created that gives a break to these farmers

on the requirement for those inspections. However, in the meantime, between Monday

and Friday, we have a whole bunch of farmers that are in non-compliance. By dating

that regulation retroactive to Monday, we cover off all of the farmers, and nobody

is out of compliance, in recognition of the emergency event.

L. Doerkson: Thanks, Minister, for the second attempt. I think I do understand, and I think you

actually touched on what my fear was. Because of that retroactive nature of whatever

regulation might be created by the government…. I guess I was worried about compliance

issues, that people or businesses or persons may find themselves actually in a position

of being non-compliant. But if I understood correctly, this is actually to help those

individuals that are non-compliant. This would actually put them back into a good

spot. Is that correct?

Hon. B. Ma:

Section 82 is…. Sorry. Again, it's getting late in the day, and I just want to make

sure that I'm reading the right thing. So yes, the Lieutenant-Governor cannot make

a regulation under

section 86, which we're coming up to, that penalizes an individual

for failure to comply with a provision of a regulation if that regulation was applied

retroactively and at the time the person took the action, they were not in contravention

of the regulation. So effectively, between sections 82 and 86, it is possible for

a regulation to be applied retroactively in order to not penalize people, but it can't

be applied retroactively in a way that does penalize people.

Clauses 82 to 88 inclusive approved.

On clause 89.

[4:45 p.m.]

M. Lee: I wanted to come back to a discussion that I know the minister will recall after many

days of discussion here in committee stage. On recovery powers, clause 89(2)(a), it

does make reference again to the description of "objects or sites of heritage value."

When the minister and I had discussion about this in the context of, for example,

clause 51, we did have a discussion around how heritage value is defined.

I appreciate, I do note and acknowledge, when I look back at Hansard what that discussion looked like in the minister's previous responses. I wanted to

give the opportunity to the minister here, recognizing that there was, certainly,

an acknowledgment that the guidance document would provide some further guidance,

at least in the context of clause 51. That was in the area of risk assessments for

local governments.

I'm just checking, in terms of who needs to take this into account, that the guidance

document would speak to heritage values. In the context of recovery powers here in

division 6, even though recognizing we're talking about the Lieutenant-Governor-in-Council,

in terms of that particular authority, I'd like to ask the minister: can she describe

what will be considered here to be an object or site of heritage value?

Hon. B. Ma: What would be considered an object or site of heritage value does not change throughout

the EDMA. As we discussed in

section 51, it would apply here as well.

M. Lee: In terms of the application of heritage value to this particular recovery power, does

the way in which objects or sites of heritage value, as it pertains to the exercise

of the recovery powers and when and how they may be exercised…?

Certainly, when we talked previously about clause 51 and when we referred to this

term, it was in relation to foreseeable hazards in assessing the potential consequences

if an emergency occurs for objects or sites of heritage value. Here we're talking

about recovery, though. In that case, is the assessment of heritage value any different?

One could expect that when we're talking about recovery, there is now a definite,

ascertainable…. It's not a forecast any longer, in terms of the impact.

[4:50 p.m.]

There's actual, not a potential, consequence or a reasonably foreseeable hazard. We're

talking now about recovery in the context that there's been damage done to a site

of heritage value or objects of heritage value. Does that assessment of heritage value

change in nature as to what the expectation will be in terms of the standard of review

or assessment?

[H. Yao in the chair.]

Hon. B. Ma: I think that it would be helpful to clarify what

section 89 does. A declaration of

provincial recovery period that was made under

section 62 signals a transition from

response to recovery and authorizes the Lieutenant-Governor-in-Council to use a subset

of the available emergency response powers for up to 90 days at a time, in support

of recovery activities.

[4:55 p.m.]

Subsection 89(2) explains that "the Lieutenant-Governor-in-Council may, by regulation,

prohibit entry into any structure, or onto any land, by any person and for any purpose

related to (

a) protecting the health, safety or well-being of persons, or the safety

of property or of objects or sites of heritage value, or (

b) taking emergency measures

to recover from the emergency."

Section 89 does not change the definition of "objects" or "sites of heritage value."

It does not affect it or affect that definition or how objects or sites of heritage

value are identified. Rather, it notes that such recovery powers can be used to protect

objective sites of heritage value, as it can also be used to protect health, safety

or well-being of persons or the safety of other property.

M. Lee: I must say that, as I've said in speaking this afternoon to Bill 41, the Forest Statutes

Amendment Act, Bill 40, the School Amendment Act, and, of course, spending the time

that I have with the member for Cariboo-Chilcotin here with the minister on Bill 31,

the challenge with the process in terms of how this government administers and manages

the House, as I've said on those two other bills and I'll just say for the third time

today in this venue, is frustrating.

It's a challenge for, I'm sure, the members: the two members of the Third Party and

the two members of the Fourth Party. Putting aside why it is that official party status

is given to a two-member caucus, putting aside that determination by this government,

I'll say that it's a challenge, right? Third Party members and Fourth Party members

have a challenge in being in three Houses at once. Certainly, a member like myself

has a challenge in participating in the important bill reviews at committee stage

on these bills.

In terms of just the opportunity discussed with the minister, the powers under recovery,

when I see what the minister referred to under division 2, "Recovery Phase," the 90-day

period she referred to, and clause 76, for example, which is referred to in subclause

89(1), says: "The minister may, by order, do one or more of the following: (

a) appropriate,

use or control the use of any personal property…."

Focusing on that particular subclause, when we're talking about the Lieutenant-Governor-in-Council

prohibiting the entry…. Well, we're talking about doing all these things in clause

(1) and then, without limiting the particular subsection (1)(b), which relates to

land and other property of clause 76, the minister does refer to the recovery phase

as being for 90 days.

In the context of the example that we've used throughout this bill review, the lessons

learned from Lytton…. If there's a situation where we have an extreme disaster for

the entire village, in this case of Lytton, and there's a determination necessary….

I appreciate again that the minister has said, in respect to clause 51, that doesn't

mean that the Heritage Conservation Act is engaged, even though this bill is referring

to language around heritage value.

Again, I would suggest to the minister that when we're talking about heritage value

of a property, that's direct language that's used in the Heritage Conservation Act.

But we've had that discussion about clause 51 already.

Even if I take that point from the minister, the point I'm making here is that we're

talking about, under subclause 76(1), the appropriation — well, we're talking about

the appropriate use or control. "The minister may, by order, do one or more of the

following: (

a) appropriate, use or control the use of any personal property."

Given that it's only for the 90-day period, first of all, I'd like the minister to

reconfirm that that's the case. Secondly, in terms of, again, talking about objects

or sites of heritage value, is that assessment being done, then, within that 90 days

or prior to the 90 days? Is that assuming that the Lieutenant-Governor-in-Council,

when they're exercising this power under 89(2), already has had that determination

made so that they can move quickly to exercise the powers under 89(1) and (2)?

[5:00 p.m.]

Or is that determination relating to heritage value to be determined during that 90-day

recovery phase, and if so, is that not a challenge for government to be able to make

that determination, given that it's taken — what is it now? — 900 days within Lytton

to get to the point where the government has announced that there are objects and

sites of heritage value that are being a challenge to the recovery phase?

I've asked four separate questions there. I'm happy to repeat some of them as the

minister goes. But why don't we just start there, if she was able to track my sub-questions.

Then I can follow on from there.

Hon. B. Ma: I'll try to respond to the, questions that I caught. Yes, the recovery period is for

90 days, but it can be extended as required. I also heard a question about when an

assessment of objects or sites of heritage value is completed.

[5:05 p.m.]

To reiterate a previous response, there is no formal assessment that is required under

the EDMA. However, we would identify objects or sites of heritage value through the

planning process with the development of risk assessments, emergency management plans.

Many of these sites will be identified to us by an entity including not exclusively

an IGB. And it is possible that through the emergency response process, additional

objects or sites of heritage value could be identified, at which point the recovery

powers could also apply to those sites too.

Clause 89 approved.

On clause 90.

M. Lee: I just would like to convey, on the record, that we had a long discussion with the

minister relating to the similar provisions in this bill — for example, clause 55,

which is entitled "Consultation and cooperation with Indigenous peoples." We have

this provision here in clause 90 and I know, subsequently, further in clause 120.

First of all, I wanted to just thank the new member for Vancouver–Mount Pleasant.

We had a side discussion, and she gave me some feedback about my questions in conversation

with the minister about consultation and cooperation with Indigenous peoples. By way

of example, as I said to the member for Vancouver–Mount Pleasant, I referred to the

Haida decision in 2004 as a seminal case relating to the duty to consult in relating

to accommodation.

Her point that she would add on, of course, is that there are other…. If we were talking

about case law, the Tŝilhqot'in decision, of course, more recently has set other standards

relating to consultation that need to be taken into account.

As we know, with the discussion with the minister, the minister has explained on the

record that that is not the test being applied in the context of this bill when we're

talking about consultation and cooperation. For example, again, local authorities

and critical infrastructure owners need to do that with Indigenous governing bodies.

That is spelled out in the bill, in the legislation, in the various related relevant

clauses, and there is the guidance document to come, as well, that will set out further

guidance to, for example, a local authority as to what consultation and cooperation

will mean. I just wanted to note that on the record and again thank the member for

Vancouver–Mount Pleasant for her attentiveness and her feedback.

In terms of clause 90, as we look at that clause, I would say that we have a similar

construction, in some respects. I just wanted to ask the minister…. When we're talking,

in clause 90(2)(b)(iii)…. The language is, "consider any comments received from the

Nisga'a Nation or treaty first nation or an Indigenous governing body," and so on.

I'm looking for the language that I've seen elsewhere, but perhaps I'll just ask the

minister this.

As we talk about this provision, that consideration test of comments — what is that

to look like in terms of just demonstrating that those comments have been considered?

And is there any record of that consideration that's provided for or required here?

Secondly, beyond just consideration, if there's any agreement or disagreement in respect

of those comments, what happens at that stage?

[5:10 p.m. - 5:20 p.m.]

Hon. B. Ma: The question was: what does it look like to consider comments received from an Indigenous

governing body, Nisg̱a'a Nation or treaty First Nation, and will it include a record?

First off, I think it's important to clarify that the consultation, engagement and

cooperation requirements are not limited just to considering comments. They're also

to consult, to cooperate and to give notice, and to take into account and to consider

the rights of Indigenous peoples on whose behalf the modern treaty nation or Indigenous

governing body, referred to in earlier subparagraphs of that subsection, acts.

There's not a hard-and-fast rule about what this looks like. It will be very context-dependent.

So comments could include…. If the context of the action being taken is time-sensitive,

it could very well be a phone call directly to the leader of the First Nation to have

a conversation there. In another context, where the decision is not imminent or time-sensitive,

it could be receiving comments by email and meetings of technical staff to have broader

conversations.

The legislation doesn't include a requirement for documentation, but certainly it

would be prudent for ministries and the province to keep records of consultation and

of comments for future reference and future decision-making. It is also possible,

through agreements with Indigenous governing bodies, that there are formal recordkeeping

provisions in those agreements, if made by those agreements.

There was also a question around what happens in instances where there are disagreements

around the consideration of those comments. I would say that in many cases, this is

going to overlap with our constitutional duty to consult. It's worth noting that

section

90 does not require that we reach an agreement on the outcome in this context, but

certainly, as a province, we are responsible for the actions that we take and the

consequences, the impacts, of those actions we take.

If we fail to consider the comments of an Indigenous governing body, the Nisg̱a'a

Nation or a treaty First Nation, then that can result in negative impacts to them.

So it's incumbent on us to ensure that we have considered that in the context of the

decision being made.

We are responsible for the relationships that we have and maintain with Indigenous

governing bodies. Good relationships are built on good-faith actions and conversations.

Certainly, it would be incumbent on us to ensure that we are taking those comments

in, in a good way.

With that, Chair, I wonder if we might be able to request a recess.

H. Yao: Yeah, we'll call a recess for five minutes. Is five minutes enough?

Yes, I call for a five-minute recess. Thank you, everyone.

The committee recessed from 5:24 p.m. to 5:32 p.m.

[H. Yao in the chair.]

The Chair: I now call the committee back to order. We are on clause 90. Do you have any more

questions?

M. Lee: I do appreciate the fulsome response from the minister. Also, I started at the so-called

tail end of the framework. As the minister started her response, she took us through

the framework that's contemplated under clause 90. I would note a couple of things,

in addition to what the minister has said. My sense is that in her response she is

certainly recognizing the honour of the Crown, as we are talking about the obligations

and requirements on the minister herself in this provision, for example.

Again, I recognize that there are similar frameworks around consultation, cooperation

and engagement with Indigenous peoples in other provisions of the bill, some of which

we've dealt with, for example, in clause 55. Here, though, the distinction between

clause 55 and clause 90, at least in the way I see it, is that clause 55 did refer

to the term "lead minister" and went on to include local authorities, public sector

agencies or critical infrastructure owners.

In this case, in clause 90, we are talking about the minister herself. In recognition

of what the minister has said in her fulsome response, in good faith, I will also

add that the minister has referred, in the context of clause 55, beyond the guidance

and beyond what's spelled out in the bill — which, I think, would be applicable here

in clause 90. I would ask the minister to confirm that, given that we're talking about

a minister of the Crown here.

I will say also to the minister — I note in her previous responses that she would

also consult as necessary with the Minister of Indigenous Relations and Reconciliation,

for example — that there are other resources that a minister of the Crown could draw

on, in order to ensure that the minister herself is complying with what is contemplated

in this example clause.

[5:35 p.m.]

Keeping that in mind, is the standard that we're talking about, on consultation and

cooperation under subclause 90(3) of this bill and then the notice requirement, the

details in the intended action, the consideration of comments…? I'll just stop there

because I do want to talk about consent. That is in subclause (4), but just to stop

and just focus on the keywords of subclause 90(3).

When the minister is looking at her duties to comply with what's set out here, is

there any higher standard that she sees, as a minister of the Crown, to address this

level of consultation and cooperation? Secondly, other than this legislation and an

understanding of what is set out in terms of case law and the honour of the Crown

and that responsibility to Indigenous peoples and First Nations, is it contemplated

that there would be other guidance set out in respect of clause 90 in the guidance

document?

[5:40 p.m.]

Hon. B. Ma: Yes, the honour of the Crown applies in all of our dealings with Indigenous peoples.

The province also has its constitutional obligations to consult with Indigenous peoples.

Those duties may overlap with, but are not limited by, the obligations of the EDMA.

What consultation cooperation looks like under this

section could vary, but it could

also be informed by agreements created with Indigenous governing bodies within this

legislation. We have been working on draft guidance documents for consultation and

cooperation, including for obligations under

section 90.

M. Lee: I'm just going to take this opportunity to express my appreciation for the minister's

efforts and the team around her over the last eight days. I may or may not have the

opportunity to say this tomorrow, so I'll just say it on the record today. I appreciate

the minister's patience to go through the complex nature of this bill and much of

the details to be spelled out and understood, including by way of regulation and guidance.

Again, I appreciate all of your efforts here.

I have one more question here. Depending on the response, I may not have any further

questions on this clause. In terms of clause 90(4), as I mentioned in my previous

question, it does refer to consent. Here, the minister must not take the action contemplated

or described in subsection (2)(

a) that will affect an area, unless the Nisga'a Nation

or treaty First Nation as applicable consents to the action being taken. Obviously,

the word "consent" with an Indigenous nation, Nisga'a here, or treaty First Nation

has great import to it.

[5:45 p.m.]

I'd like to ask: when we're talking about consent here, what is contemplated here

under this provision in terms of the form of the consent and the nature of the consent

and the process to obtain that consent with the Nisga'a nation or treaty First Nation?

Hon. B. Ma: The legislation itself does not lay out a process. So based on what's in the legislation,

that process to achieving consent would be very context-specific.

That being said, we do have a standing relationship with modern treaty nations. We

worked together on development of this legislation. We'll be continuing to work together

with them on development of regulation and would certainly continue to work with them

in this context as well, so that there's good understanding of what that process will

be between us.

M. Lee: I appreciate the response, and I certainly understand and appreciate the relationship

with the modern treaty nations and the work that's been done to date, and more to

come.

That would suggest that when the regulations are to come, there is still some further

work as to understanding the process, the form of consent, what's going to be required

such that the minister would not take a specific action in subclause 92(a), which

is making an order recommending that the Lieutenant-Governor-in-Council make a regulation

or take any other action in relation to clause 6. This, then, again relates to what

we've been looking at — clauses relating to land and other property, general restrictions

and recovery powers, and then subclause 89(2) as well.

[5:50 p.m.]

There are certain areas of this bill in terms of the powers that are exercisable by

the minister, either through Lieutenant-Governor-in-Council or otherwise, making orders

that would be subject to specific consent by the Nisga'a or the treaty First Nation.

I do appreciate the earlier discussion with the minister in terms of the recognition

of self-governance rights, including for the Nisga'a Nation and the treaty First Nations.

I do appreciate where that is coming from, so to speak. In terms of the actual understanding

of the process to get to consent and recognizing that oftentimes, as we know, there

is an expectation around what the consent process ought to look like….

Does the minister have a good expectation at this point that there will be a sufficient

level of understanding and agreement with the Nisga'a Nation and the treaty First

Nation as to the nature and form and process for that consent? Did I hear the minister

correctly that this will be set out in the regulation as well, or is this in the guidance

document?

[5:55 p.m.]

Hon. B. Ma: The treaties have provisions for responses to emergencies. We have strong relationships

with our treaty partners, and we are confident that we can develop the right type

of process to meet the needs of this legislation.

It will not be set out in regulation. My reference to the development of regulations

was to emphasize our ongoing relationship with them and commitment to work with them

on all aspects of this legislation.

The process to achieve consent under this provision will likely be specific to each

nation. While our guidance documents might provide some high-level tools and guidance,

it is likely that we would need to work with each treaty nation or the Nisga'a Nation

to ensure that there's a common understanding of how this will be implemented.

Clauses 90 to 106 inclusive approved.

On clause 107.

L. Doerkson: Just a couple of quick questions on 107.

The first question is: is this a new power that's being bestowed on local governments?

Hon. B. Ma: Generally no, these are not new powers. They are, in some sections, further enumerated.

When we were talking about provincial powers, where we specifically laid out some

of those powers…. Those sections would apply here as well.

What's new is the ability to use these powers under the recovery period as opposed

to a state of emergency.

L. Doerkson: Under both of those periods or timelines…. They can, obviously, exercise similar powers

to what the province can, which is all good. I just wonder if there are situations

where damage or…. Businesses, perhaps, may suffer consequences because a local authority

has used some of these powers.

[6:00 p.m.]

Will those challenges be a problem of the local authorities, or will the province

step in to help in those situations? Where will those responsibilities fall?

Hon. B. Ma: I was wondering if the member might be able to repeat his question. I'm not sure I

quite followed it.

L. Doerkson: Because of actions that may occur by exercising these powers, if there are situations

where damage is done to property, those types of things, I know that there are mechanisms

for people to try to secure some of that funding or some of that help from the province.

Do those responsibilities stay with the province, or will that fall to the local authority?

Hon. B. Ma:

Section 123 talks about when a person is entitled to compensation due to damages caused

by the exercise of a power. The person is entitled to claim compensation under that

section from the entity that exercised that power.

So it would be from the provincial government if the minister or the Lieutenant-Governor-in-Council

exercised the power. It would be from the local authority if the local authority exercised

the power.

Clause 107 approved.

On clause 108.

L. Doerkson: I just want to spend a couple of minutes discussing item 2 here. As far as the consultation

and coordination, this is obviously with respect to evacuation and re-entry. I know

that those are complicated processes, but it's the re-entry that I'm interested in

— understanding what that consultation might look like.

If I could just get a better sense of what the minister would expect in that situation.

[6:05 p.m.]

Hon. B. Ma: It may be helpful to speak to the intention of this section.

An example of where this subsection would apply is…. Let's say you have a local authority

that is evacuating an area, and it is adjacent to another jurisdiction. So one jurisdiction

is evacuating their area. It is adjacent to another jurisdiction and likely that their

evacuees are going to be transiting through that other jurisdiction. Then the local

authority must consult and coordinate so as to ensure that adjacent authority knows

what is happening and that they're going to be having evacuees travelling through

their area.

It's basically to ensure that local authorities are talking to each other when evacuations

happen — that you don't have municipalities or regional districts suddenly dealing

with hundreds or thousands of people going through their communities without understanding

why or what's happened or having any chance to coordinate the evacuation routes or

have an understanding of, basically, what's happening.

I'm going to pass it back to the member, who might want to elaborate on any further

questions that he has on that.

L. Doerkson: Thanks, Minister. I guess what threw me off on that is it just seems to me that that's

already happening. I mean, it already happens.

I see the minister shaking her head. I am getting used to looking at you on a TV,

Minister.

Anyhow, with respect to this clause…. I mean, are there examples of why this needs

to be in place?

Then I guess the second question is: if that doesn't happen, are there any compliance

measures that might be levied against the local authority that was making those decisions?

[6:10 p.m.]

Hon. B. Ma: The current Emergency Program Act doesn't contain a requirement for any consultation

between organizations, so I would say that that kind of communication is inconsistent

right now. The EDMA lays out that it becomes a requirement. It is not considered an

offence under

section 150, so it isn't subject to those lines or penalties.

L. Doerkson: Just one last question on this.

I guess I wondered where the clause came from and why. Like I said, I've been one

of those folks that has been forced to evacuate, and frankly, I couldn't believe how

incredibly organized many things were. By the time we got to Kamloops, they were set

up at the arena for us and the community was there to greet us.

It's not as though we have a bunch of highways to choose from, certainly, in the north.

I guess I just wondered: what was the driving force behind this clause? That'll be

my final question on this clause.

Hon. B. Ma: I think we can say that we're incredibly grateful for all of the communities who step

up during emergencies to support one another. The cross-community collaboration is

really quite fantastic, and we're so grateful for that.

This clause is included in the EDMA really to formalize the requirement to ensure

that emergency responses are effective and coordinated in order to better protect

lives and property in the affected areas. That isn't to say that it isn't happening

right now, but it is inconsistent, and we would like that kind of cooperation and

consultation across jurisdictions to be more consistent right across the province,

as we know that it does help support better responses and supporting of people in

communities.

Clauses 108 to 121 inclusive approved.

The Chair: Minister, I ask you to note the hour, please.

Hon. B. Ma: Thank you so much, Chair. Thank you to my critic.

Noting the hour, I move the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 6:14 p.m.

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