Hansard Blues

Committee of the Whole –

Section C

Draft Report of Debates

The Honourable Raj Chouhan, Speaker

4th Session, 42nd Parliament

Wednesday, October

25, 2023

Afternoon Sitting

Draft Transcript — Terms of Use

PROCEEDINGS IN THE

BIRCH ROOM

Committee of the Whole House

BILL 32 — PROVINCIAL SYMBOLS AND

HONOURS AMENDMENT ACT, 2023

The House in Committee of the Whole (Section

C) on Bill 32; S. Chant in the chair.

The committee met at 2:57 p.m.

The Chair: Good afternoon, Members. I call Committee of the Whole on Bill 32, Provincial Symbols

and Honours Amendment Act, 2023, to order.

On clause 1.

T. Wat: I would like to ask the minister: has the ministry consulted with diverse Indigenous

groups in British Columbia about designating a fossil as the province's emblem? If

so, were there any concerns raised by those groups?

Hon. L. Popham: Yes, there was engagement with local First Nations where this fossil was discovered.

T. Wat: So there's engagement with First Nation groups, right? Did I hear the minister right?

Can the minister name who those First Nation groups are or any band that the minister

can talk about?

Hon. L. Popham: The ones that I can let the member know about right now are the K'ómoks Nation, Wei

Wai Kai and Wei Wai Kum. We can get a more fulsome list for the member, if she wants.

T. Wat: Thank you for the minister's response. I'm kind of surprised why the minister has

to get the list without having to respond right away if she has engaged in a fulsome

kind of consultation with the First Nations.

[3:00 p.m.]

Hon. L. Popham: The consultation was done in 2018, while the vote was taking place. We have full records

of those consultations. We don't have them with us today, but we are happy to share

them.

T. Wat: I'm quite surprised that the minister has made the decision to present the bill in

the Legislature. This year is 2023, and the engagement, the consultation, was done

in 2018, going back five years ago. So with five years, anything can happen.

I don't understand why there wasn't any up-to-date consultation with First Nation

groups.

Hon. L. Popham: Our fossil management office has ongoing consultation with nations around fossils

and the management of fossils.

The initial consultation specific to this fossil was started in 2018, but conversations

continue along the way. I can tell the member that I visited the museum where the

work on this fossil has been housed and led from. There was a representative from

the K'ómoks Nation there, and there seemed to be a lot of happiness that this was

moving forward.

As far as specific details around official consultation that has been documented,

those records can be provided to the member.

T. Wat: Definitely, we would like to have the record. But I'm still a little bit bewildered

that when the minister decided to present this bill…. When I first raised this question,

the minister didn't seem to remember whether there was an engagement. Has the minister

read the record, the report about the engagement that was done in 2018?

As I said, five years have passed. I'm still surprised that there's no consultation,

up to date, with the First Nation concerning this fossil being proclaimed as the emblem.

Hon. L. Popham: I'm not sure where the confusion lies, but there was consultation done. Those records

can be given to the member if she wants.

T. Wat: My confusion is that the minister cannot tell me the content of the consultation.

I guess the consultation took place in 2018, five years ago. It looks like the minister

hasn't dug up the report. The staff hasn't sent the report to the minister for her

to read.

[3:05 p.m.]

Five years have passed. The whole political climate is different. I think we need

to consult the First Nation by having the decision to proclaim this fossil…. I still

cannot understand why there's no up-to-date consultation with the First Nations group.

The Chair: Member, just to be aware, I believe the minister has in fact answered the question.

If she chooses to answer again, that would be fine. But if you could move on to another

line, that would be great. Thank you.

Hon. L. Popham: I think I have answered this question, but I'll answer one more time.

There is ongoing engagement with First Nations in our fossil management office. There

are visitations to sites done by this office and continuing conversations. So we feel

that there was a consultation done, that there were opportunities for nations to raise

concerns. No concerns were raised. In fact, the visit that I had in Comox just a month

and a half ago seemed to be very positive.

There have been a lot of opportunities to raise issues if there were issues. We feel

that nations are supporting this process moving forward.

T. Wat: I just would like to put on record that we would like to have the official consultation

— as the minister said, 2018.

The minister stressed that the fossil management office also has ongoing discussion

and engagement with all the First Nations groups. I'm sure there should be a record,

and we would like to have the record of when it took place. Ongoing, meaning from

2018 all the way to before the bill was presented? What are the groups, and when did

it happen? We would like to get that kind of information.

I would like the minister to tell us if were there any specific considerations regarding

why this particular fossil was chosen over the other fossils.

Hon. L. Popham: It was an exciting process, actually, how this particular fossil was chosen.

There were seven different fossils that were put forward. Those were chosen by the

B.C. Paleontological Alliance — those working with the province and the alliance.

Those were the seven that went forward to a public vote.

[3:10 p.m.]

There was time — I think it was three months — where a public poll was posted on engage

B.C. This was from August 15 to November 23. This was in 2018.

This resulted in approximately 5,000 votes cast. Out of the seven candidates, this

particular fossil received 48 percent of the vote. The runner-up fossil only received

15 percent. It was an overwhelming vote for this fossil, and that's how it was decided.

T. Wat: Thank you, Minister, for the detailed response. I will come back to this.

I just want to ask another question. Does the minister plan to use this new fossil

emblem to boost the B.C. tourism industry?

Hon. L. Popham: Well, I guess the short answer is: of course. Canada is one of the top areas for fossils,

and B.C. is quite an attraction for paleontologists from around the globe. Any chance

we have to identify just another reason for people to come to British Columbia, we'll

do so.

This fossil is added to a list of emblems that are our official emblems in the province.

We're really proud to have this one. Kids, as we know, love fossils. This is perhaps

just another campaign to attract people to learn more about our geological history.

T. Wat: Thank you, Minister. I'm so excited that the minister said yes.

Is there any plan for how to use this new fossil emblem to boost the tourism industry?

Is there any budget allocated, or is there any detailed plan? How long will it take

for whatever plan that you have?

Hon. L. Popham: I think our plan is to try to get this passed first, and then we can have those discussions.

I feel like the opportunities are endless with something like this. I'm happy to start

having those conversations, but it hasn't passed yet.

T. Wat: It will, soon.

The minister just now was saying that the votes took place in 2018. I want to confirm

that I heard it clearly — 2018, right? I wonder why it has taken so long for the ministry

to present this bill to the House.

Hon. L. Popham: Yes, the vote started in 2018. As the member will know from having been in government,

there is a lot of work to make sure that something moves through a legislative calendar.

A reminder that this also started as a private member's bill.

[3:15 p.m.]

Just as a side note, the work on this has been going on for a very long time, even

under the member's government, with the late minister, Stan Hagen. The community has

been interested in this for a very long time, and we found a way to move it in as

a government bill and fit it into the legislative calendar this fall.

As I think I stated in second reading, it does seem like it has taken a bit of time,

but in fossil years, it's not that long.

T. Wat: It takes millions, billions, right?

Since the minister mentioned the private member…. I just wonder: why did the government

not support the private member's bill when it was introduced by the member for Courtenay-Comox,

especially considering all the significant resources invested in pursuing this as

a bill introduced by the ministry?

Hon. L. Popham: When it was originally introduced, there was already a full legislative calendar and

schedule. So this was our first opportunity.

Clauses 1 and 2 approved.

Title approved.

Hon. L. Popham: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The Chair: This committee will rise while I go down and report, and we'll reconvene in ten minutes,

please.

The committee rose at 3:18 p.m.

Committee of the Whole House

BILL 29 — ENVIRONMENTAL MANAGEMENT

AMENDMENT ACT, 2023

The House in Committee of the Whole (Section

C) on Bill 29; S. Chant in the chair.

The committee met at 3:30 p.m.

On clause 1.

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

Act, 2023, to order.

The minister would like to make some remarks.

Hon. G. Heyman: I just want to introduce the two staff people who are supporting me today. On my left

is Laurel Nash, assistant deputy minister, environmental protection division. On my

right is Christa Zacharias-Homer, the director of the bonding strategy.

I would just say that I look forward to the four days of intense questioning that

the opposition critic has promised me.

R. Merrifield: Thank you to the minister for the introduction and for the enthusiasm towards the

next four days. I also just want to thank staff for the briefing call and to see you

guys in person and not just on a video screen. Thanks so much for being here today.

I'll start by just asking some more broad-based or general questions. Could the minister

share who was consulted on this bill and over what time period?

Hon. G. Heyman: We have an extensive list here. Once we accepted the mandate, we undertook preliminary

engagement with Indigenous peoples and key stakeholders. A broad engagement on our

discussion paper took place April to May 2022. There were six virtual public engagement

sessions and five virtual engagement sessions with First Nations and organizations

that took place between April 20 and May 5, 2022.

We received responses from the Engage B.C. feedback form. There were 67 online entries

and, through written submissions, 16 letters and five emails.

From December 2021 to March 2022, both Environment and Energy, Mines and Low Carbon Innovation met with the following external organizations to introduce the project and identify

next steps: the government of Alaska; the First Nations Energy and Mining Council;

the Mining Association of British Columbia; the Council of Forest Industries executive;

Teck Resources; the village of Port Alice, which is home to the Neucel legacy project

that I referenced in second reading, where the people of B.C., through the government,

have incurred substantial cleanup costs; the B.C. Business Council; Northern Confluence;

MiningWatch Canada; West Coast Environmental Law; Skeena Wild Conservation Trust;

Environmental Law Centre; the Ktunaxa Nation Council; the Montana Department of Environmental

Quality; Coast Waste Management Association; and Washington state.

R. Merrifield: Thank you for the answer. I know the minister didn't go through each of the individual

responses, but I only noted one actual corporation. All the rest were associations.

Was it only Teck Industries that was consulted, or were there other corporations or

other individual companies that gave feedback?

[3:35 p.m.]

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

First of all, when we put out the call for submissions, any corporation or company

that had expressed an interest to engage with us directly, that would have happened.

We did engage with Rio Tinto directly.

In our engagement with the B.C. Business Council, they also identified that there

were some corporations that formed a subcommittee that wanted to meet with us. We

engaged with that committee, which included Paper Excellence and Rio Tinto, as well

as the Teck smelter group, which is separate from the mining group.

As we develop implementation plans and regulations, we will continue to consult and

engage.

R. Merrifield: From what I understand from the minister, there was a pretty wide-span engagement,

which is great. Understanding also from the briefing that this is enabling legislation,

so there's still going to be ongoing consultation as we move through into regulation.

What will that consultation process be, going forward, as per the development of regulations?

[3:40 p.m.]

Hon. G. Heyman: First of all, I would say that as we're working on the implementation plans or the

regulations, we will also use the Engage B.C. platform to give people who want to

be engaged directly or consulted directly an opportunity to either give us feedback

in writing or to request a meeting. As I've said previously, we will follow up on

those specific requests.

In addition to that, of course, we will do consultation with Indigenous organizations

and First Nations that are impacted. We will likely replicate some online webinars

for groups of people. We will have targeted engagement with industry, particularly

with larger corporations that have already expressed an interest. We will look for

engagement with local governments, which definitely have an interest, likely through

a webinar or, in some cases, directly — and similarly with environmental non-government

organizations and public interest bodies.

R. Merrifield: Thanks, Minister, for the answer to the question.

I'm always terribly uncomfortable with enabling legislation without the regulations,

so we can't get into some of the nitty-gritty in this rigour with committee stage.

I am a little bit uncomfortable with just leaving things to regulation and leaving

so much to regulation. But I appreciate that through the consultative process and

also through the minister's indulgence, I'll be able to weigh in on some of those

regulations, as they move forward.

I'm changing gears. Sorry. My husband says I'm terrible at the transitions. In the

news release, it states that the consultation "included a review of existing programs

in other jurisdictions." Could the minister let me know just what other jurisdictions

were included in this review, and what was the assessment of each one?

Hon. G. Heyman: Thank you to the member for the question. While this is not an exhaustive list, we

did look at a number of other jurisdictions that included the provinces of Ontario,

Quebec, Saskatchewan. We looked at the state of Queensland in Australia. We decided

that you couldn't call any of them a gold standard. In some cases, they weren't comparable

situations to British Columbia. While there were things to learn from them, they weren't

necessarily appropriate for the B.C. situation.

I would say that we leaned on Saskatchewan's legislation probably more than the others

and borrowed a lot from that, in terms of decommissioning and closure plans.

[3:45 p.m.]

R. Merrifield: Thank you, Minister, for the answer. I'm curious. What exists inside of this legislation

that was not found in the other plans?

Hon. G. Heyman: I would say the difference isn't so much in the provisions in our bill, which I would

say largely are similar to Saskatchewan's. The primary difference is that legislation

in other jurisdictions, like Quebec, for instance, is specific to mining. Saskatchewan

is limited. The Environmental Management Act itself applies to a much broader spectrum

of industrial operations, and because we're making amendments to the Environmental

Management Act, it also is broader in scope than these other sets of legislation.

However, it's important to note that there are provisions through both the Mines Act

and the act that governs the B.C. energy regulator that are already advanced over

what was available through the Environmental Management Act. So in a sense, we're

bringing the Environmental Management Act up to a common standard.

R. Merrifield: In the press release, the minister also stated that this is to "ensure owners of high-risk

industrial projects are responsible for the full cost of environmental cleanup if

their projects are abandoned."

Could the minister clarify: how is high risk defined under the current legislation,

and what's changing with this bill?

Hon. G. Heyman: Through this strategy, we are or will be applying a risk-based approach to prioritize

which particular industrial operations will be required to have decommissioning and

closure plans.

The risk rating will be determined as a function of a number of things — environmental

liability and financial risk factors — the details of which will be determined through

policy development and engagement with Indigenous peoples, industry and the public

and introduction of new regulations. A specific answer will be available when we have

the regulations following consultation.

[3:50 p.m.]

I would say that we found in the review of other jurisdictions that it's common practice

to require mandatory closure planning and financial assurance for industries that

are generally recognized as high risk: for instance, industrial waste; mining; oil

and gas; waste management facilities, specifically landfills; and hazardous waste

facilities.

R. Merrifield: Thanks to the minister for the answer.

Who creates the risk matrix? The minister mentioned that that's going to be done through

regulation. Is that a third party? Is that being done inside of the ministry? And

then who actually assesses that risk on the matrix? Or is it just identified with

these different industries — waste management, mining, etc.?

Hon. G. Heyman: I've given, in the previous answer, the most obvious high-risk industrial operations

that I think it's safe to assume would fit in any matrix we developed and would fit

the common public perception of high risk, as well as those industries where failure

to properly close or decommission or prevent escape of toxins would have very, very

significant financial impacts, as we've seen; for instance, with the abandoned New

South site.

In terms of developing the risk matrix, we will, as I mentioned, do that through a

process of consultation with all interested parties, as well as First Nations.

The development of the matrix is then done by staff in the environmental protection

division in my ministry. It goes through the process of cabinet committees and cabinet

approval before it is considered a finalized regulation. Then decisions about applying

the matrix in accordance with the regulation will be made by statutory decision-makers

in the division.

R. Merrifield: Could the minister describe what other industries might have a high-risk assessment

that might not be in those top industries that were described?

Hon. G. Heyman: Well this won't be a complete list, but the member asked what other industries might

be considered; for instance: smelting, chemical manufacturing, commercial waste management,

mining and non-metallic mineral industries, petroleum refining, pulp and paper mills.

R. Merrifield: Could the minister just describe what this legislation is in response to?

[3:55 p.m.]

Hon. G. Heyman: I would say that while I had been thinking about the need for some sort of legislation

that embodied the polluter-pay principle to protect the public interest, the culminating

incident, for want of a better word, was the experience with Neucel, where it became

obvious that the costs to the public were going to be substantial and ongoing.

Through discussions at Treasury Board, the issue came up about both our need to evaluate

what our potential liabilities would be in other areas and to take some measures to

protect taxpayers against having to assume that liability.

As a result of that, the process of making a commitment to the people of British Columbia

to do this prior to the last election campaign and then beginning the process of consulting

and developing legislation took place.

It was also apparent that when we looked at Neucel, the scope of the need to protect

was greater than Neucel. It was greater than the pulp and paper industry. In fact,

there were policy gaps in place in our legislation, and it was necessary to close

them by putting in place proactive measures that required planning and bonding for

the eventual closure.

There will, of course, be a second phase of the bonding strategy. We're not here to

talk about that today, because developing further elements of the bonding strategy

against unforeseen or unplanned site closure, decommissioning and rehabilitation will

be somewhat more complex, and we wanted to get the process started with phase 1.

R. Merrifield: The minister's referred now, both in his opening comments in second reading as well

as today a couple of times, just to Neucel and the cost to the public and the ongoing

costs that that will be. Could the minister, not just using Neucel but all of the

different liabilities that British Columbians have right now, give an idea of the

scale of the liability — just even rough numbers or a general guess?

[4:00 p.m.]

[J. Sims in the chair.]

Hon. G. Heyman: As of October of this year, the amount of money the provincial government or taxpayers

of B.C. spent on Neucel alone was $116 million. That was to prevent potential significant

and catastrophic pollution of the waters in the surrounding area.

As of March 31, 2021, I think there was an overall provincial liability of about $485

million for contaminated sites throughout the province. But that provincial liability

is an underestimation of the total cost that would be required to clean every brownfield

site in British Columbia. Mostly, those sites get assessed and cleaned up when somebody

has a proposal for development, either for new industry or for housing, and that is

a significant inhibitor to further economic development or further development of

housing.

Between the 15 years of 2005 to 2020, the province spent an average of $11.6 million

per year on active cleanup, which is different from overall liability. During that

15-year period, the liability increased at an average of $17.9 million a year. All

of this is to say there's a good case to be made for requiring bonding at the front

end, as well as planning by the proponents for what is required to properly and safely

decommission and close an operation.

R. Merrifield: Just for clarification, from 2005 to 2020, $11.6 million a year. But the number of

$116 million –– that was for 2021. So that's outside of that number? That would skew

that number quite significantly. Am I accurate in my numbers?

Hon. G. Heyman: That is correct. Neucel is an active site, so it is not included in that average that

I previously gave.

R. Merrifield: Thank you to the minister for the clarification. How is this legislation different

than the one that was repealed in 2017 by the NDP?

[4:05 p.m.]

Hon. G. Heyman: Thanks to the member for the question.

The regulation to which the member refers was the Spill Cost Recovery Regulation,

which was repealed in 2017, to allow the province to introduce spills cost recovery

provisions directly into the Environmental Management Act, which was the Spills Preparedness,

Response and Recovery Regulation, introduced in 2018. This simplified the regulatory

provisions and aligned with the cost recovery sections in the Environmental Management

Act.

The step was necessary to ensure that the requirements listed in the repealed regulations

captured the persons responsible for the spill, and not British Columbians or the

government, to pay for environmental cleanup. The regulation introduced in 2018 and

these amendments to the Environmental Management Act today will interact and support

each other.

R. Merrifield: Could the minister tell me how many permits have been issued over the course of the

last seven years without this particular legislation being applied?

Hon. G. Heyman: In addition to authorizations or permits that would be issued by the environmental

protection division, there would also be permits and authorizations with respect to

mines, with respect to the environmental assessment office and with respect to the

B.C. Energy Regulator.

We simply don't have an answer to that question today, but we can try to compile it.

If the member wishes the answer, or if the member wants any more detail than what

she outlined in the question, we'll provide it at a later date.

R. Merrifield: Thank you, Minister, for the answer. You're right. I was, maybe, a little bit too

vague. What I'm trying to ascertain is: how many actual high-risk, as defined by the

matrix, will be coming out in the next few months/year?

How many projects would fit into that matrix of high risk that have been initiated

or commenced over the last seven years? I'm not asking just for an arbitrary number

of all permitting in all jurisdictions under all. But how many of these high-risk

would have been permitted over the last seven years?

Hon. G. Heyman: While that is a narrower scope, it's still an answer I'm not prepared to or couldn't

give today, because it involves a number of ministries. We will gather that information.

R. Merrifield: I appreciate the minister's willingness to give me that information, and I look forward

to receiving it.

[4:10 p.m.]

Will this legislation be retroactive? Once the regulation is fully defined under the

legislation, will there be an application to those that have gone without it to this

date?

Hon. G. Heyman: The current

part 4 of the Environmental Management Act applies to contaminated sites.

These amendments to the Environmental Management Act will apply to existing sites

and sites newly proposed.

R. Merrifield: Could the minister answer if there will be any grandfathering of any of the current,

or will all of those be subject to the bonding that's required for closure plans?

Hon. G. Heyman: As I said, previously abandoned projects are not in the scope of this work.

Part 4

of the Environmental Management Act addresses that and allows the province to retroactively

pursue past owners that have caused contamination, which is, as we've seen in the

case of Neucel, not always easy.

[4:15 p.m.]

Existing operations and new sites that are required and will be determined to fit

the risk matrix as it is developed through consultation will be required to work with

us on decommissioning and closure plans, as well as to provide security where the

potential environmental liability and financial risk fit the matrix.

R. Merrifield: So is the minister going to have a ranked priority list of the different high-risk

projects? Is the ministry doing the actual ranking of these projects? Will the ministry

be going out and seeking these? I can only imagine tens of thousands of different

decommissioning and closure plans suddenly flooding the ministry and trying to get

through that with a glut of different projects.

Could the minister just describe how this legislation is going to be retroactive to

all the projects that are currently existing within the industries that were stated

as well as all the additional ones that the ministry might decide are high risk?

Hon. G. Heyman: I'll qualify my answer by saying that we have work to do and consultation to do on

the risk matrix, how we define a high-risk site and what the screening criteria are

for that. But it's safe to say that, generally, those operations that are covered

by the waste discharge regulation, which requires them to have permits if they're

going to discharge waste, would be those that would be considered in scope.

While this number may vary a little bit, the current assessment of how many fit that

criteria today, i.e., operations that are in existence today, is about 177.

R. Merrifield: I'm understanding that, basically, there are 177 that would be immediately assessed

and would have to come up with closure and decommissioning plans as well as security/bonding

for those plans. Is that a correct understanding?

[4:20 p.m.]

Hon. G. Heyman: Again, we'll be developing the full matrix and consulting on that and then have an

implementation period. But yes, they will be required to have a decommissioning and

closure plan. Many of them already do, not all of them but many of them.

Even for new projects, the requirement of security is based on the potential financial

risk. So not all of them have to post security; it's a decision of the ministry after

reviewing the decommissioning and closure plan and assessing the potential financial

risk that determines whether we'll call for a security or bonding of some financial

security.

R. Merrifield: Could the minister describe when a security bond would not be necessary? Could the

minister just give an example of one of those situations?

Hon. G. Heyman: I think it's difficult and probably not appropriate for me to speculate on specific

types of industry or industries. I would say that once the assessment of the environmental

liability and the financial risk is done and there is a decommissioning and closure

plan in place that is costed, there will be guidance from the Ministry of Finance

about what is considered the right security to cover that.

[4:25 p.m.]

We expect some form of security at some level would be required of most of the projects,

somewhere around or slightly higher than 90 percent, but the amount of financial risk

and environmental liability will help determine the amount. So in some cases, the

security may be very small, although some may be required. In other cases, it will

be very high.

R. Merrifield: Will existing projects that already have a decommissioning and closure plan be grandfathered

in, or will they have to resubmit under this new legislation?

Hon. G. Heyman: Well, the operations that have decommissioning and closure plans have plans that have

been reviewed by the ministry already, but they may have to be reviewed in the context

of any new requirements developed by regulation.

Even under the proposed legislation, and this will be addressed through regulation,

we didn't find any jurisdiction that didn't have a requirement to review the decommissioning

and closure plans periodically to ensure that they were up to date and appropriate.

Some were three, some were five years, and we'll choose a number as part of our consultation

on the regulation.

R. Merrifield: Am I to understand correctly that there will be, under the regulation, a period of

time that will be stipulated in which the decommissioning and closure plans will have

to be reviewed every five years, every ten years? Is that what the minister was alluding

to then? And then different security posted every five years or every increment of

time that is given under the regulation to actually be reviewed?

Hon. G. Heyman: The answer to the first part of the question is yes, whatever the regulation states

is the period of review.

The plans will need to be reviewed to ensure that they take into account any changes

of any kind, as well as to ensure that the amount of security is adequate to the expected

cost of implementing the decommissioning and closure plan at the time of the review.

Could that result in further security being required? It could, if the difference

was substantial enough to merit it.

R. Merrifield: So "substantial enough to merit it" would be determined by that process that the minister

described earlier, where the ministry would go to the Finance Minister and seek advice

on whether or not it was financially worthwhile to be bonded? Is that the process

that I'm understanding?

[4:30 p.m.]

Hon. G. Heyman: My reference to consulting with the Minister of Finance would be for a general framework

to help us determine the appropriate amount of security to ask. Once that initial

assistance of the framework is done, we wouldn't go to the Ministry of Finance every

time. The statutory decision–maker would then apply a common framework that is fair

to make the determination of how much additional security, or how much security in

the first place, is required.

It's important to note…. I may be anticipating, to some extent, your next question.

One of the principles that we're building into this process is a principle of ensuring

that our operations remain competitive. So we are looking at amounts of security required

in other jurisdictions and how that works. But we don't want to underwrite competitiveness

at an inordinate expense to the taxpayers. So both of those things are significant

factors.

My assumption is that large operations do take into account their potential for pollution.

They deal with that by building in and designing in measures to mitigate that, as

they will be doing in terms of their decommissioning and closure plans.

R. Merrifield: Hopefully I telegraphed fairly efficiently in second reading exactly what my concerns

about the bill were.

Definitely, on the one hand, yes, the stewardship of the environment is so important.

We need to keep that at the forefront. On the other, we need to keep our industries

competitive and our economy moving forward. So definitely holding those intentions

in balance and making sure that there's the responsibility necessary. Yes, most definitely.

I want to also, though, just mention that the minister had mentioned in his speech

in second reading about the pulp mill run by Paper Excellence. That's the one in Powell

River. I'll quote: "Paper Excellence is the project owner and has conducted proactive

environmental cleanup over recent years and is working to properly decommission the

site to ensure that the environment and the people who live in that environment are

protected."

The minister also referenced that the amendment would not actually apply in this particular

case. Could the minister just explain more about how that would not apply in this

particular case, but would apply in others that are currently still ongoing?

[4:35 p.m.]

Hon. G. Heyman: This relates to what I commented on earlier. That site is currently not active, in

the sense that it's not in operation. They are in the process of implementing a decommissioning

and closure operation under the Waste Discharge Regulation. When that is complete,

if contamination is found, that will be addressed under the existing

part 4 of the

Environmental Management Act.

The amendments we're bringing in today apply to active or new sites. The site I referenced

in second reading had ceased being active except for the closure activity, which is

not what we mean by being active.

R. Merrifield: Thanks to the minister for clarification.

I commend the minister for drawing attention to really positive examples of where

industry is doing a great job. I think we need to really acknowledge where industry

is doing an excellent job of stewardship.

Additionally, though, I also want to see that extended to others that are doing that

same job. I'm trying to figure out who this applies to and who it doesn't apply to,

so trying to draw some inference through what the minister has previously said.

Hopefully, these are a little bit shorter in answer. Is this legislation only for

use in decommission and closure?

[4:40 p.m.]

Hon. G. Heyman: I would say that this bill relates solely to decommissioning and closure plans, securities

associated with them and information required and ordered by the ministry to assess

the work on that.

R. Merrifield: So new regulations are to include a transition period. What kind of timeline is the

minister considering before these amendments are truly in effect?

Hon. G. Heyman: Our intention…. You know, there's a consultation, reg development discussion, consultation

with First Nations and then information and education. And there are all the resources

of the environmental protection division working on many things simultaneously. So

we would expect to have the regulation in place in 2025, no later than the end of

The member asked about a transition period. I think the best way to approach it is

to consider the period of time between now and the proclamation of the regulation

to be the implementation period. Because we will be working with industry throughout

the consultations as well as the reg development, they should have a pretty good idea

of what's coming.

R. Merrifield: I'll ask just one final question before I'll turn over the floor to my colleague and

the amazing Leader of the Third Party.

I want to question something that the minister just said: that the notice period is

the working period during which the regulation is being formed but that industry won't

actually know what the final regulation is until the end of 2025. But they should

be somehow anticipating what that regulation is?

I'm going to, I guess, press on that a little bit, considering industry is…. In formulating

a decommissioning and closure plan, to do so in a vacuum, even if it's an informed

vacuum, without knowing what the exact regulations are I think would be somewhat premature

for any company to do pre-emptively before having the regulation.

Again, I'll just ask the minister: would there not be a time frame given whereby they

could come into compliance with this regulation? Surely the minister isn't suggesting

that they have to come into regulation immediately upon the regulation having been

signed.

[4:45 p.m.]

Hon. G. Heyman: First of all, I think industries will have a pretty good idea of what will be included

in the regulation before proclamation, but the act will give the statutory decision–maker

the ability to require a decommissioning and closure plan. Nobody is required to begin

working on one until the requirement has been made by the SDM.

I think we can assume that the regulation will allow a period of time, upon issuing

a notice of requirement, to create the decommissioning and closure plan. That, of

course, will be developed through consultation on the regulation.

Chair, if we are about to change to questioning from the Leader of the Third Party,

could I request a three- or five-minute recess?

The Chair: Thank you, Minister. Yes, I will call a recess for ten minutes.

The committee recessed from 4:47 p.m. to 4:59 p.m.

[J. Sims in the chair.]

The Chair: We're going to…. Here we go.

S. Furstenau: Thanks for the opportunity to ask a few questions. I'm going to, much like the member

for the official opposition, ask a few general questions.

[5:00 p.m.]

Does this legislation cover the liability and cleanup costs of a project that's not

necessarily at an industrial site? I'll just give a specific for that. Say there's

a company that is tasked with removing….

The Chair: Member, can I just ask you to hold on a minute? We're trying to get the sound adjusted,

and then I'm going to have you start again.

Let's try again.

S. Furstenau: Much like the member from the opposition, I'm just going to ask a couple of general

questions. My first is about the nature of activities that would be covered by this

legislation or these amendments.

Would, for example, a company that is tasked with removing hazardous or contaminated

waste be required to put up a security or a bond in case their activities aren't compliant

with other legislation and they, for example, put that waste in a site that's not

appropriate for it?

Hon. G. Heyman: Thank you to the member for the question. The answer to her specific example…. First

of all, I think, earlier, I ran through a list of the kinds of operations that would

be covered by these amendments, and that would be in Hansard .

But for the specific example that was asked about, the answer is no. They would not

be covered by these amendments. But they would be covered by the Hazardous Waste Regulation,

which does require decommissioning and closure plans and securities.

S. Furstenau: Thanks to the minister for that answer.

In the case of somebody not using an appropriate site, and there isn't a decommissioning

plan, there is the option for applying a polluter-pay model to that sort of example.

If, again, a company that is tasked with removing specific materials removes them

to an inappropriate site and doesn't have a decommissioning plan [audio interrupted]

it wasn't meant to go there.

These amendments, as I understand from what the minister just said, won't cover that

kind of scenario. But the hazardous waste legislation also seems to leave some gaps.

Is there a way for those gaps to be closed with legislation like this or amendments

like this?

[5:05 p.m.]

Hon. G. Heyman: If somebody is required by the Hazardous Waste Regulation to have a decommissioning

and closure plan and, perhaps, be required to post security and they haven't done

that, there are compliance options under that regulation.

If the operation falls under the threshold outlined in the regulation, which would

be, I assume, what the member is referring to as a gap, that can be addressed currently

under

part 6 of EMA, the Environmental Management Act.

S. Furstenau: The official opposition critic brought up that in the minister's second reading notes,

he pointed to Paper Excellence as an example of…. I think what he said was that Paper

Excellence is the project owner of the pulp mill in Powell River, has conducted proactive

environmental cleanup over recent years and is working to properly decommission the

site to ensure the environment and the people who live in that environment are protected.

Paper Excellence is getting a lot of attention in the news at the moment, not for

particularly good reasons. In fact, NDP MP Charlie Angus has recently been quoted

saying that everything Paper Excellence has said about being a good corporate citizen

is blown out of the water after the CEO, Jackson Wijaya, refused to appear before

a federal committee to answer questions about its corporate structure and business

relations.

I'm curious why the minister chose to hold up Paper Excellence as an example in his

comments. Further to that, has there been a comprehensive environmental assessment

of the pulp mill site in Powell River?

Hon. G. Heyman: I'm going to answer the member's question in reverse order. I'm assuming the member,

by asking whether there's an environmental assessment, is referring to an environmental

assessment as required by the Environmental Assessment Act, which would not apply

to the decommissioning and closure of a site that's covered under the Environmental

Management Act.

I think it's important to look at my remarks in second reading in their context. I

raised Paper Excellence because it was an example of a company that, prior to us introducing

legislation, had proactively developed a decommissioning and closure plan and is in

the process of implementing it. So that was the point I was trying to make.

[5:10 p.m.]

S. Furstenau: Thank you for that.

Under clause 1, if the minister could explain and provide an example of the substitution

under clause (

d) in regard to the effect of a suspended authorization, just for clarification

on what that specifically means in (

d) under clause 1.

Hon. G. Heyman: I hope this answers the member's question. Subclause 1(

d) repeals and replaces subsection

18(6) to reflect the changes that are made in subclause 1(

a) of these amendments.

What it does is it specifies that in the event of suspension of one or more authorizations

within a permit or approval, the requirements that are within the permit or approval

remain in effect. In other words, they are not suspended unless they are specifically

suspended, and they can be amended using the authority in

section 16 of the Environmental

Management Act.

S. Furstenau: I think that helps. So just to be clear, the authorization in a permit or approval

is suspended, as it says. That doesn't remove the other requirements of the permit

or approval. I think the minister can just confirm that those other requirements remain

in place is the intention of that.

Hon. G. Heyman: That is correct.

S. Furstenau: If the Chair and perhaps the minister and staff will humour me a little bit, because

as was pointed out by the member for Abbotsford South I think today, it's a little

hard with two-person caucuses to get around to everything. If I could ask some questions

that go beyond clause 1, that would be really helpful.

In particular, I wanted to ask a question about third parties and what kinds of protections

are afforded to third parties by these amendments. And if there aren't protections,

why was that decision made? For example, if we look back at historic examples, something

like Mount Polley, where the impacts to the residents and tourism companies, fishing

companies…. Those would be examples of third parties that are hurt by contamination

caused by an industry.

Do these amendments create any protections for third parties?

The Chair: Member, we're going to answer the part of the question that's relevant to clause 1,

and then I'm going to go back to the official opposition to finish questions on clause

1. Then we will move on to the other questions you have.

Hon. G. Heyman: I think the question relates to a different clause than 1.

The Chair: Thank you, Minister.

R. Merrifield: Okay. This is just a clarification on process. So we're not able to answer the Leader

of the Third Party's question relating to a different clause unless we approve clause

1? Is that correct?

[5:15 p.m.]

The Chair: No, we are going to finish the questions on clause 1. Once we have finished, then

we will move on to the next clause.

R. Merrifield: Okay, I think that that clarifies that we cannot move forward from clause 1 until

clause 1 questions are completed. I'm willing to bounce around, but that's okay.

I'll try and get on the specific questions. In the proposed amendment to

section 18

under the current act, in subsection (1), there is an addition of "authorization or

requirement included in the permit or approval."

Could the minister provide a few examples of what types of authorizations and requirements

the minister or director may suspend?

Hon. G. Heyman: This

section refers to permits under the waste discharge regulation and conditions

in those permits, but it could be any condition in the permits. The reason for the

amendment is to give clarity that particular conditions can be suspended rather than

the whole permit having to be suspended.

R. Merrifield: Thank you, Minister, for the answer to the question. So do the minister and the director

have equal authority here?

[5:20 p.m.]

Hon. G. Heyman: The difference is…. They're not exactly the same. The authorities of the minister

are all authorities that the director has, with the exception of one thing. The minister

has the ability to determine if the permit or approval is in the public interest.

Then the director also has authority with respect to the decommissioning and closure

plan specifics.

R. Merrifield: Under the proposed changes to subsection 18(4)(b), can the minister explain how it

will be determined that a holder of a permit has failed to comply with an order related

to decommissioning and closure plans, decommissioning and closure of specified facility

or the security in relation? Is there a threshold or set criteria?

Hon. G. Heyman: First of all, I want to correct part of my previous answer. The minister also has

additional authority under 18(3)(c), (d), (

e) and (f), which are outlined in the bill.

[5:25 p.m.]

There are a couple of instances where there are default time limits for compliance

outlined in the bill itself. In other cases, they may be outlined, or guidance may

be given to the permit issuers by the regulations to be developed. But the short answer

is you're either in compliance or you're out of compliance.

R. Merrifield: Is there an appeals process?

[H. Yao in the chair.]

Hon. G. Heyman: Yes, there is an appeal process. Someone who wishes to appeal can do so through the

Environmental Appeal Board.

R. Merrifield: Would there be any type of public notice, then, regarding a failure to comply by the

permit holder?

Hon. G. Heyman: The process of inspections and determinations of non-compliance generally adhere to

principles of administrative fairness. When an inspection report is prepared, it is

provided to the responsible party or corporation. They are given an opportunity to

respond to the details in the inspection report, and that report is posted publicly

on the ministry website.

R. Merrifield: Under the proposed changes to subsection 18(6), can the minister provide a situational

example as to how this would function?

Hon. G. Heyman: I think I've answered the question, but the member may be asking to give a specific

example. I don't know that it's helpful to. I think the

section quite clearly states

that if a condition or part of a permit is suspended, the rest of it remains in force

and effect and may be amended. So it could be any condition.

R. Merrifield: I guess, just to the minister's query, I'm actually asking…. In what situations would

an authorization or requirement be cancelled but not the whole permit? In what situations

could the permit be cancelled but not the requirements? I'm just asking for specifics

as to what those could look like.

[5:30 p.m.]

Hon. G. Heyman: I think the answer would be: it could be any requirement in a permit that is no longer

relevant or no longer necessary, maybe applies to a

section of the operation that

has been already closed or is no longer in operation. It enables the permit to be

up to date without suspending the entire permit.

R. Merrifield: Thank you to the minister for the answer to that question.

Is this only at government's initiation — I'm going back to the inspection reports

— or are there provisions for complaints or for whistleblowers? Does that only go

to the ministry and then the ministry that does the inspection report? What is the

mechanism for these types of incidents to be reported?

Hon. G. Heyman: There are both random and planned inspections that occur periodically that could result

in findings or orders. There are also opportunities for the public to make complaints

directly to the ministry or, through the RAPP line, report a polluter or poacher —

or poacher or polluter. It doesn't much matter. They're both Ps, and they're both

there.

In some cases, people will contact their MLA and ask them to look into it, and they'll

contact the ministry. Or sometimes, as I said, they'll contact the ministry directly.

[5:35 p.m.]

In that case, unless we were pretty sure it was a frivolous or vexatious complaint,

we would inspect. We'd go see for ourselves, and we probably wouldn't give notice.

Clauses 1 and 2 approved.

On clause 3.

R. Merrifield: Starting under, not the

definitions, the very first part here. My question is about

the responsibilities of the director. What are the responsibilities of the director

and the authority that's given to the director, and is this authority binding?

Hon. G. Heyman: By responsibilities of the director, I'll assume that the member means the authorities

of the director.

Clause 3 authorizes a director to order an owner or operator of a specified facility

to provide information about operations and activities taking place at the facility,

substances present at the facility and the financial conditions of the owner or operator.

That's

section 91.81.

Authorizes a director to order an owner or operator of a specified facility to prepare

and submit a decommissioning and closure plan, to update the plan or to address deficiencies

in the plan.

Section 91.82.

Authorizes the director to order an owner or operator to decommission and close a

specified facility that has submitted a D and C plan after operations at the facility

have ceased and authorizes the director to require an owner or operator to provide

security in relation to decommissioning and closure obligations.

Section 91.84.

Authorizes the minister to issue a stop-work order if a person fails to comply with

an order of a director in relation to a decommissioning and closure plan or an order

of a director to provide security in relation to a decommissioning and closure plan.

That's

section 91.85.

[5:40 p.m.]

Authorizes the government to enter an abandoned facility and carry out decommissioning

and closure and immunizes the government and its employees from liability in relation

to government decommissioning and closure. That's

section 91.86.

Provides for the recovery by the government of costs incurred to decommission and

close an abandoned facility.

Section 91.87.

The last three, obviously, are minister or government powers. The further responsibility

or authority of the director is to make statutory decisions related to any of the

above.

R. Merrifield: Thank you to the minister.

I do read. My question was, actually, not just what the bill allows for but more specifics

as to what that would look like.

For instance, the bill facilitates and authorizes the minister to issue a stop-work

order. Does the director inform the minister and then the minister makes that judgment?

What is the appeal process? What happens if an organization disagrees with the director's

findings, etc.? What if the director wasn't necessarily as thorough as they should

have been? What is the appeal process? What is the…?

I guess, maybe, that's why I asked for responsibilities rather than just the authorities.

I can read the bill for the authorities.

[The bells were rung.]

Hon. G. Heyman: I should be able to get this answer in.

The director, as all public servants do, has a duty of due diligence as well as due

process and administrative fairness. The director might make a recommendation, with

supporting documents, to the minister to issue a stop-work order. Generally, that

would have been preceded by briefings, if they're available, on activities that had

or hadn't taken place leading up to that.

The minister may become aware of a situation and ask for a report from staff and the

director on the basis of which the minister might make a decision. At that point,

the party may appeal to the Environmental Appeal Board. It has its own procedures

and standards, including deciding whether the stop-work order should stand until the

appeal is heard or whether it should be stayed until the appeal is heard.

With that, Chair….

The Chair: Thank you, everyone. I'm calling a recess.

The committee recessed from 5:43 p.m. to 6 p.m.

[H. Yao in the chair.]

H. Yao: I call the Committee of the Whole on Bill 29, Environmental Management Amendment Act,

2023, back to order. We are on clause 3.

R. Merrifield: Under the act, the word "facility" is defined to include "any land or building, and

any machinery, equipment, device, tank, system or other works." Are buildings over

water included in that currently? Are all structures captured by this definition?

Hon. G. Heyman: Yes.

R. Merrifield: Okay, wow. Brevity — I love it. We're going to make it through today.

Under the proposed definition for "owner," it specifies "a person who is in possession,

has the right of control, or occupies or controls the use of the facility" or "a person

who has an estate or interest, legal or equitable, in the facility." Would this also

include businesses, corporations, joint ventures, trusts, bands, and so forth? Who

would this include?

[6:05 p.m.]

Hon. G. Heyman: The responsible person is the owner, which may be an individual, may be several individuals,

may be a corporation, may be some sort of business venture or trust. But whoever can

be identified as owner under the

definitions of the act, either as owner or has control

of the facility, would be covered.

R. Merrifield: Again, the minister said the owner or the person in control. How is it…? Is it both

of them? Is it shared, or is it one of them, one or the other? How is that actually

determined?

Hon. G. Heyman: The responsible person could be either or both.

R. Merrifield: How would it be determined, then, if a person, corporation, etc., is equitable?

Hon. G. Heyman: I'm not sure I understand the question in terms of equitability, so rather than answer

it incorrectly from the perspective of the member, I'd ask the member to clarify.

R. Merrifield: In 91(8)(b), it says: "a person who has an estate or interest, legal or equitable."

How is that defined?

Hon. G. Heyman: Again, it could be either or both. The idea is to keep the definition expansive and

not narrow and specifically to be able to capture shell companies.

R. Merrifield: What is the process of identifying the owners, then?

[6:10 p.m.]

Hon. G. Heyman: Well, in most cases, the ownership is a matter of public record, but it can be hard

to determine when there is a shell company listed. So in the director's request for

information, to comply with the provisions of the act, as well as provide the decommissioning

and closure plan, the director would ask for further identification of who the actual

owners are, digging below the shell company to get that information.

R. Merrifield: What would happen if the owners of the shell company are not within Canadian jurisdiction?

Hon. G. Heyman: In some ways, the member has gone right to the heart of the need for this legislation,

at least in what has been our prime example, Neucel.

We would work with our colleagues in Finance and AG to ensure that the surety that

was posted was completely adequate.

R. Merrifield: So the definition provided goes on to say: "but does not include a person excluded

by regulation." Who might be excluded, and what is the purpose of this exclusion?

Hon. G. Heyman: That is fairly standard language in a number of pieces of legislation. I'll give you

an example of one thing that would apply. If the government was the owner, we might

exclude the government by regulation because we'd effectively be bonding ourselves.

We would have the liability in any event.

R. Merrifield: Thank you, Minister, for the answer.

Going back to the previous question, does foreign ownership factor into the risk matrix?

Would higher bonding or higher security be possibly required of a foreign owner that

might be harder to collect from?

Hon. G. Heyman: It could, and I think I implied that in a previous answer.

R. Merrifield: So relating to third-party protections, when pollution impacts other parties, what

protections will they have?

[6:15 p.m.]

Hon. G. Heyman: In answer to this question, which I believe is the same question the Leader of the

Third Party asked, one of the purposes of this piece of legislation, the requirement

of decommissioning and closure plans that are reviewed and approved, is to ensure

that measures are put in place to minimize the risk of escaped pollution that could

impact third parties. That's the first point.

An impacted third party does have the ability to pursue the responsible party for

the pollution through the courts, but there is nothing in this legislation other than

trying to prevent impacts on third parties and the environment, in general, that would

provide for compensation or recourse for a third party.

However, in phase 2 of the public interest bonding strategy, which isn't this piece

of legislation, we might well consider looking for ways to address that, either through

the risk matrix and measures we might take in terms of unforeseen and unexpected potential

pollution, which is not covered by this legislation but will be a subject of discussion

and consultation for phase 2.

R. Merrifield: Currently this legislation wouldn't have — not necessarily even protections — any

mechanisms for a third party to receive any sort of compensation for cleanup on their

particular property from contamination that happened on this site. The government

doesn't possess any powers within this legislation currently to compel that cleanup

to occur on a third-party site. Is that correct?

[6:20 p.m.]

Hon. G. Heyman: This would not be covered by these amendments to the Environmental Management Act.

In the design and creation of a project, there may be contamination of the footprint

of the site itself, which would be the subject of the decommissioning and closure

plan. I can't imagine a situation in which we would knowingly, whether it was our

ministry or another ministry in government, permit an operation knowing that it would

result in the leaching of contaminants from the site onto adjacent, either public

or private, property.

Conditions would likely be put into place in the permit to contain any potential leachate

and to ensure that it didn't happen. If the operator was not in compliance with the

permit or, for some other reason, contaminants strayed from the footprint of the actual

site, then a third party would have recourse for damages through the courts.

R. Merrifield: Currently this legislation doesn't expand that at all or include that. This only includes

on-the-site decommissioning and closure.

Hon. G. Heyman: The answer to the member is no. This bill does not provide any such provisions. The

second phase of the public interest bonding strategy is intended to deal with unforeseen

circumstances. We are not currently developing that or consulting on it. That is going

to come.

We wanted to get this first phase done, rather than wait for everything to be done

at the same time, because it will take more time. In that circumstance, we may well

consider provisions to do what the member and the Leader of the Third Party have been

requesting, but that is not part of what's before us today.

[6:25 p.m.]

R. Merrifield: In a previous answer, the minister actually said: "Whoever can be identified." We

had already canvassed, back in the authorization, that a director can order an owner

or operator for specified information. The minister referenced that power in order

for a director to ask for the information relating to the process of identifying ownership.

What are the powers that a director would have to ensure that this was actually accurate?

What if an owner decided to remain hidden? Are there any implications to that aspect?

Hon. G. Heyman: In the case of a not-yet-started operation that was providing information that was

requested or required by the director, simply refusal to authorize the plan and, ultimately,

permits to operate that would depend on the plan.

In the case of an existing operation, if information was required by the director

and not provided, the company, the operator, would then be out of compliance with

a direct order under the act. There would be a system of penalties to compel the information

to come forward. That could include any range of actions that would be compelling.

R. Merrifield: That seemed a little bit vague in terms of what could be compelling for a director.

Could the minister perhaps give a couple of examples?

Hon. G. Heyman: Escalating fines and/or a stop-work order.

R. Merrifield: The stop-work order, though, would be issued by the minister, correct? The authorization

of the stop-work order is under the minister's authorization, not the director's.

But we won't get into that.

The definition provided for "responsible person" specifies that it means "an owner."

But what happens if there are multiple owners of a facility with varying shares of

control? Why is it not automatically all owners?

Hon. G. Heyman: I believe that in this circumstance, "an owner" means all owners.

R. Merrifield: Can the minister provide examples of a person who is not an owner but is in control

of or responsible for the operations located in a facility?

Hon. G. Heyman: A person — for instance, a site superintendent — given authority over the site by

the owners.

R. Merrifield: So by this legislation, that site supervisor would have to put up bonding?

Hon. G. Heyman: Thanks for the request for clarification. I expect the way it would work would be

this. The responsible person in charge and control of the site would convey the requirement

for bonding to the actual owner.

[6:30 p.m.]

If the actual owner didn't provide the bonding, then the likely result would be a

stop-work order or a failure to authorize commencement of the operation, which would

impact the owner directly — owners directly, if there is more than one.

R. Merrifield: So this person that is responsible could be someone without a vested interest in the

facility. It could be a site supervisor, a chief operating officer or a senior executive

or a manager? Is it possible for property managers, then, or receivers to be captured

under this provision?

Hon. G. Heyman: The first group of people that were identified by the member, I would argue, have

a vested interest in that their jobs depend on the operation either continuing to

proceed to start up or continuing to operate. However, they are acting on behalf of

the owner.

With respect to a receiver, I think they're acting on behalf of the court. If the

province had a residual interest that the province wished to pursue, we would have

to register a claim against the property. But the whole purpose of having a requirement

for decommissioning and closure plans backed up by bonds is to not have to go that

route, to ensure that the money is held in trust should the operator go bankrupt,

abandon the plant or otherwise be unavailable to carry out their responsibilities.

R. Merrifield: So if a responsible person was employed, the decommission plan is bonded. There is

a stop-work of some sort that's put on. The province comes in and realizes that the

amount of the bonding is insufficient. A project manager or a site superintendent

could be liable for the remainder amount of whatever the government determines is

necessary for the full decommissioning and closure. Am I understanding that correctly?

[6:35 p.m.]

Hon. G. Heyman: It's important, in this instance, to answer the member, to distinguish between responsible

persons and accountable persons.

Responsible persons are an owner or the person who is in control. This is the person

the government can order to complete the decommissioning and closure plan and post

the financial security. The accountable person is the owner of the facility to pursue

for cost recovery if government completes cleanup on site.

To answer the member more clearly, the responsible person who is not an owner would

not be liable for any additional costs that were not covered by the bond. The accountable

person — i.e., the owner — would be.

R. Merrifield: Thank you to the minister.

Well, I draw the minister's attention to 91.87(1)(

b) because it…. Let's just start

at (1): "In this section, 'accountable person', in relation to an abandoned facility,

means any of the following: (

a) an owner of the facility; or (

b) a person who was

a responsible person in relation to the facility immediately before operations ceased

at the facility."

Whoever was the project manager or the site supervisor or the person that was in charge

of the facility at that time would become the accountable person. Am I reading that

correctly?

Hon. G. Heyman: I would suggest the member read subsection (2), which says: "Subject to the regulations,

if, in relation to an abandoned facility, the total amount of the costs incurred by

the government under

section 91.86…exceeds the amount of security, if any, given under

section 91.84…and held by the government, the amount of the excess is a debt due to

the government by an accountable person."

R. Merrifield: Correct. The minister just read that the debt due to the government is by an accountable

person. Back up to 91.87, who is an accountable person? So (b), "a person who was

a responsible person in relation to the facility immediately before operations ceased

at the facility." It's directly above what the minister just read to me.

By that inference, the person that could be carrying the debt load could be a project

manager or a site supervisor of a facility who was a responsible person and became

an accountable person immediately after.

Hon. G. Heyman: If the member goes to the

definitions, a responsible person in relation to a specified

facility means, and I'll skip (a), that "(

b) a person who is in control of or responsible

for any operation located at the facility, but does not include a person excluded

by regulation."

So it would not be our intent to pursue an employee of the operation who is not an

owner for costs. We can clarify that under regulation, but that is clearly not our

intent.

R. Merrifield: Well, I would ask the minister…. If it is not the intent of this legislation right

now, that is how this legislation reads.

I followed the math. I followed the lines. The

definitions are very clear, and that

would be the conclusion, I think, in a court of law that would find that person to

be responsible — therefore, accountable; therefore, on the hook for any debt that

was left outstanding from a deficiency in the bonding or security.

I would kindly ask for an amendment to be made to that effect. I can definitely prepare

one, but I don't have one prepared at this time.

[6:40 p.m.]

Hon. G. Heyman: The legal advice has been that we should address this in regulation to meet our intent,

because there are a number of different circumstances in which entities — corporate

entities or companies — might structure themselves in such a way as to avoid responsibility

and payment, which is why "responsible" and "accountable" persons are worded in the

act the way they are.

It is definitely our intent to address this in regulation, which can be more easily

done through consultation and amended, if necessary, to ensure that we are not letting

people with real financial interest — and therefore, accountability in the project

— get off the hook for payment.

But I will say this clearly. It is certainly not our intent to hold employees with

no actual interest in the venture financially accountable for things that the corporate

owners should be and will be and we intend to be, and we will clarify that through

regulation.

[6:45 p.m.]

R. Merrifield: With all due respect to the minister, I think that this is a pretty difficult and

dangerous thing to leave to regulation.

I understand that in regulation, we are afforded a lot more latitude and ability to

change, ability to consult, etc., but once this law is in place, it is binding. The

way that it reads right now and the way that it has been explained and expressed right

now is such that if you are a project manager, a site supervisor or just an employee

without vested interest….

The way it reads today is that you are both a responsible and an accountable person

and that you will be on the hook for any additional debt that the government takes

on.

I would argue that that is a position no employee should be placed in. I think it

puts industry at a disadvantage, because finding that employee that is willing to

sign on the dotted would be very difficult to do. Despite the assurance of the minister

right here in this place and space, I do want it to become part of the legislation.

As such, I will be preparing an amendment to that effect and providing it to the minister

by tomorrow morning. But I would ask that the minister reconsider, and he has the

ability to do so at this point. If the minister wants to respond to that, I guess….

The Chair: The minister might as well move the motion.

Hon. G. Heyman: I've heard the member. I've indicated that by the time people are employing and giving

authority to others, that will be clear in regulation.

But I note the hour, and I move that the committee rise and report progress and seek

leave to sit again.

Motion approved.

The committee rose at 6:47 p.m.

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