1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, MARCH 1, 1988

Morning Sitting

[ Page 3189 ]

CONTENTS

Routine Proceedings

Petroleum and Natural Gas Amendment Act, 1987 (Bill

64). Second reading

Hon. Mr. Davis –– 3189

Mr. Guno –– 3190

Mr. Clark –– 3190

Hon. Mr. Davis –– 3190

Mineral Tenure Act (Bill 66). Second reading

Hon. Mr. Davis –– 3191

Mr. Guno –– 3192

Ms. Smallwood –– 3193

Hon. Mr. Strachan –– 3194

Ms. Edwards –– 3194

Hon. Mr. Davis –– 3195

Family Maintenance Enforcement Act (Bill 71). Second

reading

Hon. B.R. Smith –– 3195

Mr. Sihota –– 3197

TUESDAY, MARCH, 1988

The House met at 10:09 a.m.

Prayers.

Orders of the Day

HON. MR. STRACHAN: Mr. Speaker, I call second reading of Bill

PETROLEUM AND NATURAL GAS

AMENDMENT ACT, 1987

HON. MR. DAVIS: Mr. Speaker, Bill 64 amends the Petroleum and

Natural Gas Act. Substantially, it rolls the existing legislation

relating to the storage of oil and natural gas into the Petroleum and

Natural Gas Act, so instead of having two separate pieces of

legislation, one dealing exclusively with storage, we'll have a single

act. In making the change, the two will be rendered compatible and form

a single whole.

First, briefly I'd like to run over the principal changes which are

also made in this pulling together of the two acts.

There has been a problem with respect to underground storage. The

question as to who owns the voids or caverns — if I can put it that way

— underground is not clear in the existing legislation. Ownership is

clarified in the new legislation: it is vested in the Crown. If there

is any claim launched by a surface owner with respect to that ownership

matter, there is provision for reparations to the surface owner. It's

difficult to imagine what those claims might be, but nevertheless

provision is made in the legislation which protects the surface rights

owner if a valid claim can be made.

Also in the amendments there's a provision for pooling of oil and

gas rights. Previously it has been possible for the Crown to require,

forcibly, the pooling of Crown leases, the pooling being required in

order to have reasonable spacing of wells to ensure that oil and gas

resources are not drained from one area and exploited by another well

or another owner in another area, but basically to ensure that a

minimum number of wells are drilled, that the most efficient operation

is authorized by the Crown.

This pooling provision reaches also to the private sector, the

individual oil and gas rights owners, and requires also that pooling

occur across the present boundary between Crown-owned resources and

privately owned resources. Again, compensation is provided in the case

of any deterioration of rights on the private sector side.

Broadly speaking, there are very few private rights in the Peace

River area, but roughly a third of the surface rights in the lower

mainland are owned privately and there are mineral rights also that

extend to the amount of a third. Therefore there has to be a

rationalization of the private mineral rights and Crown rights in order

to have adequate spacing of wells and proper conservation practice in

the extraction of the oil and gas.

[Mr. Pelton in the chair.]

The legislation also strengthens the Crown's power to audit company

books for royalty determination purposes.

That's important. Companies have been voluntarily providing

information, but this legislation requires that they provide the

information for royalty purposes as a matter of law.

The legislation also incorporates a use-it-or-lose-it feature to

leases. Leases generally run for five years. There is a three-year,

more or less. automatic extension currently on payment of penalties.

From now on the test, instead of simply being a payment of penalty,

will be definite evidence that the owner of the lease is, in fact,

intending to perform, explore and drill, so it will be more a

performance test than simply a payment of penalty in order to extend

leases from here on in.

[10:15]

There are a number of housekeeping amendments. I would like to

stress, however, that there are no changes in several important areas

in the legislation. There are no changes contemplated in this amendment

act in respect to safety. In other words, if the debate focuses on the

bill, it won't deal with matters of safety.

It doesn't deal with environmental protection — that is dealt with

adequately, hopefully, but certainly is dealt with under existing

legislation. There are no changes in surface rights — the rights of

people who own surface — or for that matter in mineral rights.

contemplated in this legislation.

With respect to the mediation board, there are no changes, except

that its powers will effectively be extended to the lower mainland, if

exploration for storage potential takes place there. In other words,

there will be a low-cost mediation tribunal in place, and any aggrieved

party can appeal to that tribunal. They don't have to go to the courts,

to the expense of hiring a lawyer and so on; they can appear before

this special tribunal that deals with mediation and arbitration of

mineral rights.

This legislation is timely for several reasons. There are several

companies poised to undertake exploratory work in the lower mainland.

One of them has already started drilling a well near Birch Bay, just

south of the international boundary line. Two others have been buying

up leases, preparing to undertake extensive exploratory work. The

likelihood of these companies finding natural gas is slight: a

one-in-ten or one-in-twenty possibility. What they are looking for

really is what they refer to as competent reservoirs. They are looking

for geological formations which perhaps contain water now but which

could be used for the storage of natural gas brought down by Westcoast

Transmission from the Peace River area.

If storage capacity is found in the lower mainland, it will be a

boon primarily to the consumers of natural gas in the lower mainland

area. If the storage is adequate, the distributing company — now B.C.

Hydro Gas — will be able to negotiate a much lower rate for mainline

transportation, will take gas during the summer months from the Peace

River area and store it, and will draw steadily on the pipeline rather

than intermittently and primarily during the winter months. Because the

transportation charge is much reduced, the cost saving can and will be

passed on to the consumer, and the cost saving could be in the order of

5, 10 or 15 percent.

That activity is aimed primarily at improving the transportation and

distribution of natural gas for users in the lower mainland. But as I

said earlier, there are a number of changes which apply generally to

the industry, not the least of which are the pooling provisions which

lean towards better conservation in the industry and the strengthening

of the Crown's power to obtain financial information for royalty

determination purposes.

[ Page 3190 ]

MR. GUNO: I want to make a brief response to the presentation

by the minister on this second reading of the Petroleum and Natural Gas

Amendment Act.

There are really two major initiatives inherent in this bill which

we find to be acceptable, and so I don't see why we in the opposition

can't support it. As the minister says, it is a timely one in view of

the exploratory works that are now currently underway in the lower

mainland.

However, there are some areas of concern that I want to touch on

briefly. As I indicated, there are two major initiatives in this bill.

The area of enforcement is one. The enforcement provision for the

collection of royalties is added which allows a person designated by

the minister to serve notice that access is required to a company's

records in order to ensure that the royalties are being property paid.

In itself, that is a good provision, and it is commonly inserted in

acts dealing with financial records.

However, the troublesome

part is the unusual feature to it, in that

the act has a

section dealing explicitly with the issuance and the

serving of a warrant. In this bill, the question of who may serve the

warrant is unclear. It's unclear whether it's an employee of the

ministry or a police officer, or whether either may do it. While it is

clear on the warrant that it should be the police constable, it is not

clear in the legislation. So that's one area that we find rather

troublesome, and we want to note that.

The other area that I want to highlight is the question of the

underground storage containers. The act provides for exploration,

expropriation and use of naturally occurring underground storage areas.

The question arises of how much public input this bill will allow when

these areas are used — what may be stored in them, how many may be used

in any particular area. These are a number of questions on which public

input is vital.

I would suggest the minister consider some of the experiences in

Manitoba, where there is similar legislation that allows for fairly

extensive public input. The Manitoba legislation, for instance,

requires that the Oil and Natural Gas Conservation Board should hold

public hearings before any permit to explore or develop a reservoir is

issued. That provision is absent from this bill.

Secondly, Mr. Speaker, the Manitoba act requires that anyone

proposing to undertake any subsurface activity near a reservoir that is

likely to disturb the reservoir or access to the reservoir area, must

get approval from the board. The Manitoba legislation says that the

granting of exploration permits will be for designated areas to be

specified on a permit only. Bill 64 only says that the director may

that people will be able to explore throughout the province.

Another feature that I think bears comparison is that the Manitoba

act says that the board undertakes to subsequently grant a storage

permit to the person who explores for and finds a reservoir, if the

person satisfies the board's requirements. In the B.C. act that is not

permitted, or that is not provided for.

Finally, the Manitoba act refers to the allocation of exploration

and storage rights, as well as decisions surrounding compensation for

the use of reservoirs in Manitoba which are made by the board. In B.C.

they are allocated by one person.

As I said, the main thrust of this bill is timely, and I think we on

this side of the House have no trouble supporting it; but I would hope

the minister will take note of some of the concerns that we have

highlighted.

MR. CLARK: I just want very briefly to follow the comments of

our spokesperson on this issue, the member for Atlin. I want first of

all to thank the minister for a very full explanation of the bill and

to say that there's much that commends the bill to passage. I don't

think we have any problem with it and it is timely. It is certainly a

rational approach. Some aspects I think are very good — the performance

test and a few other things which strengthen the Crown's role and deal

with the question of rights and things that clarify a lot of points.

I haven't done enough study on this, but I think the member for

Atlin made some very good points with respect to public input. It seems

to me as a layperson that there are potential safety problems with the

storage of gas so closely adjacent to major urban populations. There

are potential environmental consequences as well, and the minister

alluded to that in his remarks and mentioned that those are covered by

other pieces of legislation.

I have very briefly just looked at the Manitoba statute which calls

for full public hearings when there is exploration for storage

facilities — underground storage facilities for natural gas — and it

seems to me that that would be an appropriate venue to view these kinds

of questions. If I as a layperson am wrong — that there are no safety

or very minor safety problems — at the very least it would allay the

concerns of the public at large and the concerns that I feel as someone

who has not any particular expertise in this area. I would say that the

public hearing process is a good one to follow. In fairness I think the

government could do more in that direction to allay the concerns.

I think that where we have a public hearing process like the

Utilities Commission and where — as I've mentioned in this House before

— there are interveners that are funded and where we have this kind of

thorough and frank discussion debate about alternatives, we get better

public policy decisions. Just per-using the bill, it appears it's a

rational approach and has many positive features. I think if we had

that kind of public hearing process that they have in other

jurisdictions, it would do a lot, because there are some at least

intuitive concerns that I — and I'm sure many members of the public —

have with respect to a volatile substance being stored so close to

areas of major population.

We had, as the minister may recall, much debate about things like

liquefied natural gas storage facilities. I appreciate that I'm making

a quantum leap, that there may not be a relationship, but there was a

great deal of public concern about that kind of volatile substance

being stored so close to major urban areas. So maybe the minister could

address some of those concerns and allay our fears.

I think it would have been better had the bill included a provision

for public hearings; I certainly don't have any hesitation in saying

that. Nevertheless, perhaps there is some other venue that could be

used to address those concerns. Perhaps the Utilities Commission or

others may be able to review those kinds of things.

[10:30]

HON. MR. DAVIS: The hon. members opposite raised several

points; more particularly, opportunities for public input. In

situations where there is likely to be, or where a developer proposes

to make, an installation of any permanence, there will be provision for

public input. I'm thinking more particularly of a gas processing plant,

for example, but I

[ Page 3191 ]

would say definitely that if a discovery is made of an underground

storage reservoir that's commercially useful, we'll have to look at

whatever surface installation is necessary — the safety provisions,

certainly the operating aspects of that permanent facility — and public

input will be welcomed at that time.

We've made commitments, for example, with respect to the Sparwood

well that there will be a public hearing if gas is found, if it's found

in commercial quantities, if processing is necessary, and so on. I'd

say the usual environmental review process would be followed and there

would be opportunities for public input at that time.

Reference was made to public input at the earliest stages of

exploration. The early stage of exploration in the lower mainland will

consist almost entirely of seismic work. Specially equipped vehicles

will locate perhaps on a street or a road or on private property if

they can negotiate an arrangement with a surface owner. They're next to

silent: they send out very high frequency shocks or messages to lower

strata and read the orientation of the formations — map them, in other

words. That process, while it's noticeable to those who live in the

area, is really not offensive. That kind of survey is a precursor to

any possible drilling.

In oil and gas, as distinct from metal mining, the oil and gas

company has to make a full accommodation with surface rights owners

before anything is done of the nature of drilling. I think we're

reasonably well covered when it comes to what I'll call exploration and

development. It's the more permanent installations. Indeed, if there

was a possibility of a well blowout or that kind of thing, it would

have to be covered by other measures.

Liquefied natural gas is another subject. That's really natural gas

compressed to liquid form and stored in surface installations. That

would be a particular plant; and were one to be built, it would be a

massive installation probably on tidewater and not generally up the

valley or in the interior.

I think those are all the relevant remarks I need make at this time,

Mr. Speaker. I move second reading of Bill 64.

Motion approved.

Bill 64, Petroleum and Natural Gas Amendment Act, 1987, read a

second time and referred to a Committee of the Whole House for

consideration at the next sitting of the House after today.

HON. MR. STRACHAN: I call second reading of Bill 66, Mr.

Speaker.

MINERAL TENURE ACT

HON. MR. DAVIS: This bill substantially rewrites the old

Mineral Act, parts of which go back as much as a century, and includes

in it a single piece of legislation which deals with placer mining. We

will no longer have a separate Mining (Placer) Act; we will simply have

a single act which puts hardrock mining and placer mining on all fours.

It uses the same

definitions and eliminates grey areas between the two

acts. Bill 66 combines the Mineral Act and the Mining (Placer) Act into

a single piece of legislation, thereby providing a common

administration system for mineral and placer rights in British Columbia.

Under the new act the mineral tenure system of the province will be

streamlined and simplified. This will benefit mineral title holders,

who have increased security of tenure, and at the same time reduce

paperwork requirements to both acquire and maintain mineral and placer

claims and leases.

Under the current legislation the only form of placer tenure is a

lease, which is obtained after a considerable amount of time and

paperwork has been expended. While this form of tenure is appropriate

for large-scale placer operations, it's not an efficient means of

obtaining rights to placer deposits for exploration purposes.

In the new act, now Bill 66, provisions are made for a new type of

claim, a placer claim, which will grant exploration and development

rights to placer minerals upon completion of staking. Location of such

claims will be province-wide and, while not carrying a rental, work

requirements will be applicable. Not more than 2,000 cubic metres of

paydirt may be produced each year from the proposed placer claim.

However, as is already the case with mineral claims, any surface

disturbance on placer claims will require prior notice to this and

other government ministries — the Ministry of Energy, Mines and

Resources, the Ministry of Environment and Parks, and on occasion the

Lands ministry — in order to ensure that unnecessary degradation of the

environment does not occur.

Under the new statute there will be no limit to the number of placer

claims located by any free miner in any year. However, the location and

maintenance of placer claims may be challenged, as is already the case

with mineral claims. Holders of current placer leases under the Mining

Placer Act may within six months of the bill coming into effect wish to

covert their leases to placer claims if they deem it appropriate.

Otherwise, they may continue to maintain these titles as leases. Under

the new legislation, leases will be maintained by paying an annual

rental per hectare, but with no work requirements.

Any number of placer claims may be included in a single placer lease

under the new legislation. However, surveys will be necessary for such

leases, and such survey requirements can be expected to be more

detailed and complex in heavily staked areas. A placer lease may be

issued for up to ten years, at which time it may be renewed for one

further term not exceeding ten years.

Under this new legislation, certain areas of the province will be

designated as recreation areas. I might add that included in this bill

are all of the provisions discussed last fall and passed by this

chamber with respect to recreation areas. So we have adopted all of the

updated provisions with respect to recreation areas.

In order that potential mineral resources in recreation areas will

not be permanently alienated from all future mining activity, the bill

will enable free miners to enter such recreation areas, stake and

maintain claims and explore for minerals for a minimum period of ten

years. The legislation also provides for a mineral potential evaluation

to be conducted if a recreation area is to become a park. The ten-year

time limit on exploration follows both the notification that a

recreation area is to become a park and the mineral potential

evaluation. If exploration activities result in the identification of

viable mineral deposits, either such deposits may then be developed or

else compensation will be paid to the owners of the mineral rights by

government, should the Crown decide that a single-use park designation

outweighs the benefits of the proposed mineral development.

Jurisdiction over industrial minerals is currently divided between

two ministries, the Ministry of Forests and Lands

[ Page 3192 ]

under the Land Act, and Energy, Mines and Petroleum Resources under

the Mineral Act. This causes uncertainty and confusion about which act

applies to a given situation. Furthermore, discovery and development

rights to those industrial minerals now covered by the Land Act are not

available to the individual in the same way as such rights are

available under the Mineral Act.

The new legislation redefines a mineral as ore and every natural,

mineable substance, but does not include earth, soil, peat, marl, sand

and gravel, or rock, rip-rap or stone products that are used off the

claims site. Essentially, agricultural and construction materials are

not included as minerals under the Mineral Tenure Act. Rights to

minerals in mine tailings, dumps and waste rock piles from previous

mining operations will also be made available under Bill 66.

As to access to properties or rights of way, the new bill will

reaffirm the right of the free miner to enter mineral lands, to explore

for and develop minerals and placer minerals. However, the free miner

will now be required to give notice to surface owners prior to

commencing any exploration, development or production activities which

disrupt the surface area. The free miner will continue to be liable to

compensate the surface owner for any loss or damage caused by his

activities.

A free miner will be required to give notice to the person

responsible for maintaining any road that the free miner wishes to use

for access before using that road for his access. He will also be

required to pay a proportionate amount of the maintenance cost of that

road. Disputes arising over the right-of-entry and right-of-way

provisions shall be referred to the appropriate gold commissioner. If a

solution is not found at that level, the dispute may be referred to the

Mediation and Arbitration Board of this ministry for resolution. That's

the same board referred to in respect to oil and natural gas in the

previous legislation.

The present prohibition on a free miner restaking within one year,

forfeiting a claim presently owned by him, will be removed. However,

such a restaked claim may be subject to a complaint that it is being

held for non-mining purposes. If such a complaint is upheld, then the

restaked claim may be cancelled and the ground again made available for

staking.

Under the new act a free miner may not commence staking on ground

contained within a mineral reserve until 7 a.m. on the day after the

reserve has been lifted.

The present Mineral Act is silent on the subject of escheated

Crown-granted claims. The new statute will allow regulations to be made

which will make these mineral rights available to the mining public

soon.

Mining leases. The new statute will convert all existing types and

classes of leases under the former Mineral Act into a new form of

mining lease. Holding requirements will be simplified to an annual per

hectare rental. The term of the lease will be increased from 21 to 30

years, with possible renewal of up to 30 additional years. The period

between the staking of claims and its recording will be established in

the regulations from the present 30 days.

The present act provides for a locating date and record date. The

new statute will combine these into one location date, being the one

date recorded on a tag on completion of a claim and on the application

to record that claim. The one-year period within which the record

holder must then perform work to ensure security of tenure commences on

the location date. The new act will allow for a common anniversary date

for grouped mineral titles to simplify the recording work on such title.

Finally, under the existing statute, the ground occupied by a

forfeiting claim, which is overlaid by a mineral claim in the same

ownership, is automatically acquired by the overlying claim. The new

statute will require the owner of these claims to make application to

the gold commissioner prior to forfeiture. This will ensure that other

free miners are made aware of the situation and will therefore not

attempt to restake the forfeited ground.

That substantially covers the bill, Mr. Speaker, and I move second

reading.

[10:45]

MR. GUNO: I want to thank the minister for the fairly

detailed explanation of this bill. As he says, it's an attempt to

rewrite the old Mineral Act. It consolidates the mining activity under

one act, streamlines the process, and deals with some of the

jurisdictional confusion surrounding the mining industry.

It's evident that this bill does merge the Mineral Act, the Mining

(Placer) Act and the Mining Right of Way Act and attempts to clarify

the rights, obligations and rules surrounding each different type of

tenure. It appears that it fills in some gaps left in the previous acts

— for example, the lack of a complaint mechanism in the former placer

act.

These are all laudable objectives, but I wonder if, when we look at

the heart of the bill, we are not in danger of — to repeat the old saw

— throwing the baby out with the bath water, because there are changes

which are extremely troublesome, and I think they would make it very

difficult for the opposition to support this bill.

I refer to several changes from the legislation in this act. The

first is the introduction of the placer claim title. Previously, a free

miner had to go to the trouble to get a lease document from any place

or activity. It is my information that half of these leases were turned

in after the first year, because they were purely for exploratory

purposes. Now a free miner may explore for placer minerals and stake a

claim on any mineral land, land where mineral title is held by the

Crown in the province.

Previously, claims could only be staked in placer lands. As the

price of placer minerals rises and falls, and given the nature of

placer mining.... I understand that a lot of loggers, ex-construction

workers and ex-truckers have turned to placer mining to find work,

because they need some way to make money in order to keep their

equipment. This would mean tremendous changes in the number of placer

miners wandering around the province looking for gold. I fear that we

will have on our hands a veritable gold rush, one that would be

difficult to regulate.

There is reference to some monitoring. Placer mines are not subject

to rental payments as leases are but are subject to work requirements —

that is, the amount of work that must be done to maintain the claim is

in good standing and the environmental standards that must be

maintained. The concern here is that given the fact that this will now

be a fairly wide-open activity throughout the province and given the

difficulty that this government has in monitoring even the present

activity, I fear that the enforcement capability is simply not there —

that it's going to be difficult to monitor the activities of these

people wandering throughout the province engaged in this kind of

activity.

[ Page 3193 ]

As a mining spokesman for this side of the House, I am an advocate

of revitalizing the mining industry, certainly a very important

component in our B.C. economy. There is no question that we should do

all we can to enhance mining activity, but I think there are still some

areas that need to be worked out.

The minister referred to the issue of recreational mining, for

instance. This bill, as he states, reintroduces, with one minor

exception or change, the text of Bill 51, the Mineral Amendment Act,

which allows cabinet to establish recreational areas, regulate

expropriation, prospecting and mining in a recreation area, and allows

the government to appropriate without compensation the mineral title

after ten years of notice.

We have gone on record as being totally in opposition to that kind

of policy, and it appears to be supported by a very large segment of

our population who are concerned about the fact that we are damaging

the integrity of our wilderness areas. I think that overall, while the

main thrust of the bill may be to simplify the process, it has fallen

very short in terms of dealing with the onslaught that will happen when

you have freed all these people to wander around the province,

virtually unregulated in terms of hunting for gold.

On that basis, I would recommend that we not support this bill.

MS. SMALLWOOD: I want to reinforce some of the comments made

by our critic in the area of mines and emphasize again some of the

statements that he has made with regard to the concern he has around

the impact that this bill will have on the environment. I think that

this is perhaps the most significant, the most dangerous piece of

legislation that is before our House, purely on the issue of the

environment and the impact that this legislation will bring to our

environment.

I want to point out some statistics, a bit of information about the

situation in our province with regard to placer mining. In 1986 there

were 5,000 to 6,000 placer leases in existence. At that time there were

notices of work filed for only 800 of those leases. Less than 250 of

those 800 actually were inspected by the Ministry of Environment. This

has a direct relationship to the ability of the Environment ministry to

enforce the regulations in the legislation of this government.

What this piece of legislation does is open the whole province up,

compounding the degradation that our streams and rivers will experience

because of this open free-for-all that is being offered by the Minister

of Mines.

I think it is irresponsible for the Ministry of Mines and the

Ministry of Environment — if they truly understand what is happening in

this province, how the fisheries stock, how the quality of water is

being put at risk because of unregulated, uncontrolled mining in this

province — to say that people can go ahead, as free miners, and indulge

in the practice of looking for gold, realizing that they don't have the

resources or the capability to actually regulate what is going on in

this province today.

It would seem to me that although we are all supportive and want to

encourage economic development in this province, the question is: at

what cost? The responsibility of the Ministry of Environment is to

ensure that our environment is protected, that all interests are

represented, not just solely the interests of the mining companies but

the interests of the communities that have to rely on the quality of

that drinking water and the preservation and enhancement of the salmon

stocks and other fisheries.

By bringing this legislation in, this government is jeopardizing not

only health and safety but the economic makeup of this province for the

sake of one single interest. I am told there are areas in this province

that have been more or less written off, that the Ministry of

Environment no longer enforces its own waste management regulations

because it is recognized that there is very little of value left to

regulate, because there has been so much damage done by placer mining,

and erosion of the quality of the streams in those areas. And they are

large areas. I'm reluctant to name them, because quite frankly....

Interjection.

MS. SMALLWOOD: I'm glad the minister recognizes that there

are some areas in this province. I don't think it does any community

good to make public pronouncements about the quality of their resources.

Interjection.

MS. SMALLWOOD: Yes, I think it's important that we facilitate

and encourage mining and industrial development — but responsibly,

coordinated with respect for other sectors and with respect for the

health and safety of communities, and the quality of their drinking

water. This legislation will jeopardize not only the quality of

drinking water and fisheries but also the flow of streams, causing them

to completely reroute themselves. In doing that, it will jeopardize

private and public property downstream.

I want to emphasize this strongly and ask the minister to reconsider

and bring in legislation that does not jeopardize the quality of life

in our province and that clearly plans to ensure that the enforcement

capability is there — to clearly ensure that if the government is

inviting mining exploration and the exploitation of our province's

resources, these can be done safely; that they don't jeopardize the

environment; that they take into consideration the impact this kind of

legislation will have.

This piece of legislation, in addition to dealing with placer

mining, talks about recreational areas. We heard, in previous attempts

by the minister to amend the recreational areas and facilitate mining

in areas that, by the Minister of Environment's own comments, are

environmentally sensitive — in other words, mining in parks.... This

piece of legislation gives the minister the power to bring in

regulations; it's government by regulation. Again, as a responsible

member of this Legislature, I can't support something until I know, and

am confident, that the government has regulations in place, and that

they have ability to enforce those regulations.

The Minister of Environment talks about these recreational areas —

not only in parks, but in wilderness areas — and offers no suggestion

as to how they will protect the integrity of wilderness or the parks.

Again, as responsible people, how can we possibly give our support to

the erosion of and attack on the very integrity of our province and the

heritage of our park system?

I think there are two very important issues that must be dealt with.

I hope that the minister, when we deal with the

[ Page 3194 ]

clause-by-clause, can allay our concerns and give us information

that will show us that he has given the necessary thought to these

concerns.

[11:00]

Again I will emphasize — 6,000 placer leases; the ministry of

Environment only checked 250 of those leases. That is an abysmal record

by anyone's standards. How can you, in any conscience, open this

province up to more degradation?

HON. MR. STRACHAN: I'd like to welcome the member back. There

has been some concern expressed by the member with respect to placer

mining activity and its impact on the environment. I don't think

there's any question that in the 150 years of placer mining activity in

the province of British Columbia — a lot of it before we became a

province — there was considerable environmental damage done by that

type of hydraulic activity, particularly in our streams and rivers.

However, I would submit that although we have to admit to the sins and

bad practices of the past, that's certainly not the case today. There

are a lot of agencies in place to guard the environment against that

type of abuse, particularly in the watershed. There's the federal

Department of Fisheries and Oceans; there's the Ministry of Environment

and Parks; there's the mine review process and a whole host of methods

and remedies and mechanisms in place to ensure that the public has the

cleanest environment and that industry is well aware of what standards

we in British Columbia expect nowadays.

There was a comment made with respect to 6,000 leases and 200

inspections. Although I will now obligate to provide a fuller answer to

the member in the committee stage with respect to that comment, a lease

doesn't mean that there's an activity happening, and therefore if

there's no activity happening, I question why we would in fact have an

inspection. That's probably the answer to your question.

There was a further comment made with respect to recreation areas. I

know that is a bit of a bone of contention now, particularly with

Strathcona Park. However, as minister I have indicated to people

concerned about Strathcona Park that there will be further public

review with respect to recreation areas and the activity, mineral or

otherwise, within those recreation areas. That process will be

forthcoming in the following months.

I will advise you, Mr. Speaker, and advise members of the

Legislative Assembly, that we have noted the concerns expressed by the

member for Surrey-Guildford-Whalley, that during committee stage I will

be prepared to have staff with me on this bill, and that we can further

debate,

section by

section and in a better-informed manner, all the

concerns that the committee may bring with respect to Bill 66.

MS. EDWARDS: I rise to speak and ask some questions of the

minister on this bill because of the impact that is very clearly going

to occur in this province by opening almost the whole province to

mineral exploration under placer claims, and by allowing any number of

claims to any free miner who has a free miner's certificate.

I don't know whether the government has considered the extent of

what can happen when this kind of activity is opened up broadly. In my

area, which has been an area where mineral leases were allowed and

where in fact placer miners have been allowed to roam and to do what

they liked, there are all sorts of people who do placer exploration. As

I have said before, when we first moved to Cranbrook, we moved into

temporary lodgings where the people in the next lodging were students

who were there for the summer simply to do placer mining. We have

already spoken of the ex-loggers and the ex-construction people, who

have machinery, who go out and stake claims and do exploration just in

case they might find gold or silver, particularly, or any kind of metal

in our particularly mineral-rich area of the province. There are

dentists. Frequently I can't get in touch with people who are making

complaints about what's happening with placer leases because they are

schoolteachers. There are all sorts of people who fortunately leave our

area during the summer and go to the Yukon and do placer mining up

there.

Placer mining is an extensive activity and many, many people of all

kinds participate in it when it's allowed. Now increasing the number of

people and the number of places where they can do this mining could

open up a real problem for the province of British Columbia because, as

my colleague for Surrey-Guildford-Whalley (Ms. Smallwood) mentioned,

there is not enough staff to carry out the inspections that could be

done. In fact, about 31 percent of placer leases are inspected by Mines

staff and about half of that by Environment staff, from what we're told

by the bureaucracy.

This is a problem, and it is a problem to Mines inspectors that I

have spoken with because there is not enough staff in the area to deal

with all of the mineral leases, the current mineral leases that are

there. There are many things happening with these mineral leases, not

only the problem of people who get a mineral lease — to use the correct

terminology — and put on it the kind of temporary shelter that they are

allowed to put on it as a free miner and then use that as a

recreational place.

The Minister of Environment said that a lease doesn't mean there is

any activity, but how is the inspector to know that if he doesn't

inspect the lease? And that's one of the problems. The Mines inspectors

in particular — and I haven't spoken recently to the Environment

inspectors — are busy in the mines in my area. I expect that is the

kind of thing that they can't help. They are very busy. They have a lot

of things to do and inspecting mineral leases is not high on the

priority list.

If in fact you increase the range and the level of activity right

across the province without indicating in any way an increase in staff

to deal with the kind of policing that has been promised.... I might

add that the ministry people tell us that there will be a board from

Mines and Environment and Parks which will vet every application for a

placer claim. They will impose certain restrictions to ensure minimal

damage to the environment and they will make stiff bonding

requirements. If you increase the possibility, the potential, for the

number of free miners who will be able to stake any number of placer

claims, and you expect by regulation that the ministry people in both

Mines and Environment are to do this kind of close protection of the

environment and the land, then you are going to have to have an

increase in staff. If inspections are not being done now, there has to

be an increase in staff.

My understanding of what this government has been saying

consistently is that there is not going to be any expansion of staff.

In fact there may be cutbacks in staff if the government has its way as

to the way government operates.

This, in fact, lays us very open to the kind of dangers that were

brought out by my colleague for Surrey-Guildford-Whalley and my

colleague for Atlin, who pointed out that placer mining can do major

destruction to the environment. It

[ Page 3195 ]

occurs not up at the top of mountains where in fact there's nothing

but hard rock, but down in the valley bottoms. It happens down where

the fish should be spawning in the streams and so on. Instead of that,

we have the possibility of people coming to do placer exploration.

Of course, there's the other problem, that they can do some

exploration, they can do some moving of earth and that kind of thing as

long as it is not by mechanical means, which means they can take their

shovels, they can take their picks, they can take whatever they like.

Until they bring in a Cat they don't have to notify even a private

landowner. A person who owns the surface rights does not have to be

notified of anything. The person who staked the placer claim doesn't

have to notify them until such time as they decide to disturb, as I

understand from the pamphlet that the minister has put out which

describes it very clearly, up to 20 cubic metres of paydirt every day.

Now presumably they would have to have mechanical means by that time;

but then they have to come to an agreement. As the minister has said,

this is an attempt to make the placer claim-staker himself give notice

to the surface rights owner, and in that sense I have every approval of

that process.

But there are things that a placer claim miner can do without having

to notify. He certainly can trespass on the property. No, I guess it's

not trespass. I have mixed messages on this. Can he in fact even enter

on the property of someone who owns the surface rights? Evidently by

this description he can. From some advice I have, that is not possible;

but I think that these questions have to be clarified. In fact, I don't

think that a lot of the people who own private property in areas where

there could be an extensive increase in the number of placer

explorers.... I don't think they will appreciate not knowing what can

happen. I think that there can be a lot of activity before anything is

going to happen to enforce the regulation, which may not even be in

force.... I have questions that it would even be in place at the time

that the claims were staked.

We have to remember our history in this regard. This province was

built on a mentality of the nineteenth century, basically, and also on

a couple of good, healthy gold rushes. The idea was that what makes the

province go is to have people come in; it was a seek-and-plunder

mentality. It was a mentality that went along with what we called the

robber barons on this continent.

We have to remember that you had gold rushes and then you had people

actually leaving the area totally for years at a time. That's the

mentality that this legislation is supporting, and I don't think that

the people of the province any more believe that that kind of

independent exploitation of a public resource is acceptable. Unless the

public government can assure the public that there will not be

individual exploitation at the expense of other individuals and

property owners, and the public at large, this can't be accepted.

HON. MR. DAVIS: Several hon. members opposite have used words

like "revitalization of the industry" and so on. We may see some

additional search for placer minerals as a result of freeing up some

areas for exploration. They can rest assured, however, that if we do

see some revitalization of the industry, we will also increase our

policing capabilities.

I think, however, that a new policy thrust should also be taken into

account. Increasingly we will endeavour to have each industry police

itself, pay for inspection and other services, retain consultants,

etc., and that self-policing activity would in turn be policed by

individuals in my ministry and, of course, by Environment and Parks,

federal Fisheries, and so on. But the emphasis more and more will be on

self-policing, internalizing those costs of inspection and those costs

of putting an insurance policy in place to make sure that reclamation

is not a big problem after any event has taken place, be it a modest

placer activity or a major mining activity.

[11:15]

The hon. member for Surrey-Guildford-Whalley (Ms. Smallwood)

referred more to mining activities than simply exploration. We intend

to bring the Mining Act before the House, tidy it up, streamline it and

endeavour to ensure that the quality of life in the province is

protected and hopefully improved by these activities, not allowed to

deteriorate further.

Internalization of costs in the industry and additional manpower

brought in to look after protecting the environment and to inspect

these activities are part of the general policy of this government.

[Mr. Speaker in the chair.]

Motion approved on the following division:

YEAS — 32

Savage

Rogers

Reid

Dueck

Richmond

Parker

Michael

Pelton

Loenen

Crandall

De Jong

Rabbitt

Mercier

Veitch

S. Hagen

Strachan

Vander Zalm

B.R. Smith

Couvelier

Davis

Johnston

R. Fraser

Weisgerber

Gran

Chalmers

Mowat

Ree

Serwa

Peterson

Davidson

Jacobsen

S.D. Smith

NAYS — 14

Barnes

Marzari

Rose

Stupich

Skelly

Boone

Blencoe

Guno

Smallwood

Lovick

Sihota

A. Hagen

Clark

Edwards

Bill 66, Mineral Tenure Act, read a second time and referred to a

Committee of the Whole House for consideration at the next sitting of

the House after today.

HON. MR. STRACHAN: Mr. Speaker, I call second reading of Bill

FAMILY MAINTENANCE ENFORCEMENT ACT

HON. B.R. SMITH: This is a happy day to be able to move

second reading on a long-awaited piece of legislation. We will try to

ensure provincewide for the first time that the spouses assume

responsibilities and live up to those responsibilities and that there

is some form of uniform enforcement of those responsibilities. Many

people in this government — the social service agencies — and many

people out there have worked towards the day when we could introduce

legislation of this kind.

[ Page 3196 ]

Enforcement remedies, of course, are currently available through the

courts. These remedies are frequently very expensive, time-consuming

and ineffectual. If a former spouse wants to be difficult, it is very

easy to frustrate enforcement efforts. Single parents trying to raise

their children are often too intimidated to take enforcement action or

they lack the financial or emotional resources and are frequently

forced onto social assistance while their ex-spouses ignore their

financial responsibilities.

The bill before us goes a long way to redress these shortcomings:

first, by consolidating and streamlining existing enforcement

legislation into a new and separate enactment; secondly, by introducing

new administrative enforcement remedies; and finally, by the

government's commitment to introduce a comprehensive provincewide

maintenance enforcement program, which will operate under the authority

of this bill.

[Mr. Pelton in the chair.]

The major provisions of Bill 71 are that it provides for the

efficient and effective enforcement of maintenance orders, regardless

of whether or not an applicant chooses to participate in the program,

by streamlining procedures for garnishees by reducing the need for

court hearings wherever possible. Secondly, it empowers the director of

maintenance enforcement, who will always remain a public servant, to

have the authority to monitor and enforce orders, and to use a new

administrative remedy called notice of attachment. What this means is

that moneys due or owing, or likely to be due or owing, will be able to

be attached much more readily than under the former procedure of

garnishee, without the necessity of attendances before the registrar

and renewing orders. It will be possible to attach future and periodic

payments under the terms of an order. It also continues to provide for

the capacity to access information on the whereabouts, the employment

and the assets of defaulting spouses for the purposes of enforcement.

And it ensures that disclosure of financial information, again for the

purpose of proceeding with appropriate enforcement remedies, is

available.

The new program to be established will be available to all people

with maintenance orders, if they choose to register. The orders will be

monitored, and where necessary, enforcement action will be taken by the

program on behalf of the client. The program will provide lawyers to

enforce orders through the courts where administrative procedures are

not successful. Unlike the programs operating in other provinces, we're

going to provide legal assistance to low-income participants for the

first time, so that they will be able to respond to applications to

vary orders which are brought by their spouses as a result of

enforcement action taken by the program. So they will not be abandoned

before the courts without help.

Mr. Speaker, it is our aim, to the extent possible, to place the

responsibility for family maintenance where it belongs: on the

separated spouses. For too long, many non-custodial parents have

abandoned their responsibilities and made their former spouses and

children, as well as the taxpayers of the province, bear the burden.

For those reasons I commend this bill.

I want to say something about another aspect of this matter, which

has been raised in the past series of months by many fathers in this

province who, while not opposed to the idea of this bill, point out

that quite often their wives — and of course, I can transpose this for

some wives who don't have custody and husbands who do.... The

non-custody spouse often feels that he or she has been denied access to

the children and is unable to participate in their upbringing. While

not directly linked to ongoing support obligations — and it never

should be directly linked — denial of access to non-custodial parents

is still a valid concern. It is hoped that in some cases, as a

consequence of improved maintenance enforcement, resolving the

maintenance issue will help resolve the access issue. But where access

problems continue to be experienced, there are existing enforcement

remedies under

section 81 of the Family Relations Act, which is the

offence provision, and the contempt process available in Supreme Court.

Also, family court counsellors are available to mediate access issues.

[11:30]

I know these remedies are not always sufficient, however. So staff

from my ministry have been directed to work towards the realization of

the uniform custody and access enforcement act which the Uniform Law

Conference is preparing. We expect that this draft legislation for the

uniformity conference will be ready later this year, and hope it will

find favour in all provinces, so we that can have some kind of uniform

procedure for access. That uniform access legislation will have these

features: compensatory access for the period denied; some method of

supervising access orders; some means to reimburse the expenses

incurred as a result of wrongful denial of access, which would be a

most important step; provision for security to be given by the

custodial parent for the performance of his or her obligation to give

access; and finally, provision for the appointment of a mediator to

resolve access disputes.

It is obvious that if we're going to do things to tighten up the

collection of maintenance money in this province — long overdue, and

everybody agrees on that — we should also address the other problem

faced on the other side by the parent who doesn't have custody and may

be denied a chance to participate in the upbringing of and

decision-making about his or her young child through all the formative

years.

The present court procedures we have are, in my view, not adequate

to protect parents of limited means who don't have custody of their

children. We have got to look at some of these uniformity provisions.

We have got to look at provisions for security, provisions for

reimbursement of expenses and the provision of mediators — as opposed

to more lawyers.

As you know, Mr. Speaker, if we're finally becoming creative enough

in this province to get some of our commercial disputes that are

littering the courts with court time — disputes involving motor vehicle

accidents, for instance, which take up so much time of the court and

are referred to in the profession as fender-benders — out of the courts

and get them into a commercial mediator in Vancouver in the arbitration

centre, as we're doing.... I know the member for Esquimalt–Port Renfrew

(Mr. Sihota) agrees with me, because he knows the importance of

removing that kind of litigation from the courts to some more ready and

hands-on method of solving it. Commercial mediators are starting to do

more and more of these cases by consent in Vancouver each week, and

this will relieve some of the burden from the courts.

The similar kind of approach on family matters, family disputes on

maintenance, and particularly the ones on access, which are among the

most difficult, sensitive and protracted

[ Page 3197 ]

of anything that goes before the courts.... The observer who isn't

emotionally involved in this situation would think that we could

resolve this very readily: we would just bring these people together

and talk some common sense. But it doesn't seem to work. So family

mediation is another means, I think, of dealing with the concerns of

the parent who doesn't have access.

That's a digression from the bill, but I wanted to make that

statement so...

Interjection.

HON. B.R. SMITH: It doesn't matter; everybody is out there

reading Hansard .

...that non-custodial parents will know — those fathers who up till

now have been left out of their children's upbringing — that we will do

something for them, that some commitment is there for them, and we make

that commitment.

I move second reading.

MR. SIHOTA: This issue of spousal and child maintenance in my

view is one of the most critical social issues of our day. It's a

vexing issue; it's not always an easy issue to resolve. It is an issue

which tears apart the very foundation of society, which is the family

unit. In most instances — in the vast majority of instances, in fact —

it places considerable economic hardship on women and places enormous

financial constraints upon children.

It has the effect of making children sometimes the pawn in a game

that they ought not to be pawns in: namely, the matter of access in

return for maintenance, custody in return for maintenance. These are —

and I agree with the Attorney-General on this — two issues which really

ought not to be linked. The matter of maintenance ought to be distinct

and separate from the matters of access and custody.

One of the reasons.... In fact, to be absolutely honest with the

members of the House, perhaps the one issue that really motivated me to

get involved in the political process was this whole issue of spousal

and child maintenance. It's a function of my own life experience, my

own experiences as a lawyer, seeing what was happening and what

continues to happen today and hopefully will be remedied in the future.

I can recollect, as a lawyer practising in Esquimalt, the number of

cases that would come in to my office involving women — in particular —

who were having difficulty enforcing maintenance orders. As the

Attorney-General knows, and as he sort of made reference to in passing,

I operated a kind of storefront practice in Esquimalt. I was fortunate

in that I had a fairly thriving practice, and I felt that I had an

obligation, given my university degree and my training and the fact

that the taxpayer had paid for that — or subsidized it, in any event —

to handle these cases, as many as I could, despite the fact that of

course there was no remuneration as counsel for it. It was sad to see

the number of cases coming in through the door that dealt with women

who were desperately looking for financial assistance, wondering where

the money would come from next month, questioning whether they should

make the application for social assistance or resort to some legal

method to try to get a former husband to live up to his obligations to

provide for spousal maintenance.

Apart from the financial implications, apart from the fact of

knowing whether or not you were going to get that $200 so that you

could send the child on a school field trip, or you could afford to buy

some clothes for the child, or you could afford to put some food on the

table.... Apart from the financial implications of the difficulty with

respect to securing maintenance, there was an unbelievable amount of

emotional trauma associated with the absence of funds and not knowing

whether the delinquent husband, or even the not delinquent, the husband

who was paying regularly...., of not knowing whether that cheque would

come in regularly.

The emotional turmoil — the emotional pressure-cooker — that a woman

and children are placed into is inexcusable in this type of society,

and inexcusable when you consider the ability, in most instances, of

husbands to pay. The system that this present administration has in

place now, and we'll deal with the legislation that's before us now....

The system that the Social Credit government had in place did very

little to help women and children facing that economic and financial

stress. I found that abhorrent.

I found it abhorrent that often, as counsel, I would be required to

play games in the courtroom, trying to argue against counsel for the

other side as to why there ought not to be a delay in the proceedings,

an adjournment of the proceedings; trying to secure financial

information about the delinquent spouse, who was playing the opposite

game and trying to hide his financial wealth; and dealing with all the

manoeuvring and jockeying that goes on in the courtroom, which really

had no bearing on reality. It was not responsive in an efficient way to

the concerns of the woman or the children who were desperately in need

of financial assistance. And looking at the judges, who had to deal

with a zillion of these cases a day, not being able to separate fact

from fiction, not being able to know in an adequate way what was

happening. Particularly at the Provincial Court level, people were

generally from low-income backgrounds, had little or no knowledge or

understanding of the legal system but knew that it was absolutely

unfair that the delinquent spouse was not prepared to pay a reasonable

amount of maintenance for support of the family. They were frustrated

by a court system which wasn't designed to deal with these types of

matters in an expeditious way and wasn't designed to deal with these

matters so that $200 could be in the spouse's pocket so that she could

go out and buy what she needed to buy. The whole apparatus, the whole

administrative scheme that we have in this province, is simply not

responsive to the life experience of people who rely on those

maintenance orders.

On a personal basis.... I guess it's part of my own background. My

first degree was in social work and the second in law. You try to help

out as many of these people as you can, but there are limits to the

help you can provide, and you're handicapped by all the other

obligations you have with your own law practice, in terms of the income

you've got to bring in, the staff you've got to pay for, and so on.

You're limited by the fact that the legal aid system in this province

is so bled, so deficient, that effectively there was no help for women

and children who found themselves in this type of situation.

It's absolutely terrifying for someone who's in that situation to

try to get some redress, to try to get a remedy, to try to get the

money on the table. Inevitably, there's always an imbalance; at least

in my submission, there's a continual imbalance. That imbalance arises

from the negative economic consequences of separation, where

inevitably, it seems, in the context of a husband and wife, the woman

and children are required to exist on a substandard income compared to

the husband. The situation is seldom remedied by

[ Page 3198 ]

maintenance payments, which are unrealistically low and oblivious to

the earning capacity of a woman who's also required to look after the

house and raise children.

I'm not criticizing the judiciary on this, but I want it understood

that there's almost an inbred acceptance that female-headed family

units must live at standards below that of male-headed family units.

There almost seems to be that kind of unwritten quality to the

decisions that reflect maintenance, an accepted practice of law —

although not written into the law, degrading, unfair, discriminatory,

and worthy and in need of change now.

[11:45]

As a society, we just cannot continue to treat women and children,

in the context of spousal maintenance, in an inferior or second-class

way. But that's what happens when one begins to analyze the negative

economic consequences of separation. That's why I call it an inbred

acceptance that female-headed units must live at standards below that

of male-headed units. That's just not correct.

The Attorney-General is correct in saying that all of us recognize

that there has to be reform of the maintenance system so as to bring

about a greater level of economic equality after separation. Of course,

maintenance cannot be seen in isolation; there must be a sharing of

assets, of the household, of other benefits — pension systems and the

like — that the family may have secured over time, as well as

maintenance. There must be some sort of equality brought into the

economic equation which arises from a separation.

But within the context of maintenance — which is really what this

legislation deals with — the issue is: how can you draft a spousal

maintenance or enforcement system that achieves the goal of economic

equality, that takes away the pressure cooker, that assures some

continuity of cash flow, that recognizes the obligation of husbands in

particular to provide for their former wives and their children?

The challenge for the Legislature, in addition to what I just

mentioned, is: how do you adjust, manoeuvre, tinker with the judicial

system — or overhaul it, as I'm sure some would argue — to make it far

more responsive to the day-to-day realities and needs of those in need

of spousal and child maintenance? How do you take a bureaucracy like

the courts, which I don't think was ever intended to deal with this

type of social problem, and give it some flexibility, some relevance,

and allow it to work in an expeditious way?

Let me provide some ideas in terms of what you need to make the

system work. What I propose to do is to go through the attributes of

what I think would allow for the establishment of a proper maintenance

enforcement system, then to juxtapose or compare that with what the

Attorney-General is suggesting in the legislation that's before the

House, and then to pinpoint what I think are some flaws in the

legislation, with the understanding, because I know the

Attorney-General in this regard: if he sees merit in some of the

complaints that I have and the flaws that I would point to in the

system, save one that I know we're going to disagree on, there will be

an acceptance on his part of agreeing to make some changes that I think

are necessary to make the system better than what's being proposed here.

Let's go back and take a look at the challenge that I've tried to

lay out here in terms of what you need to make the system work, to

bring about the sense of economic equality that I talked about. First

of all, it seems to me that the program must be universally accessible.

It must be available to every spouse and child that wishes to utilize

ease.

In other words, the moment a maintenance order is issued, it ought

to automatically be captured by the administration that we set up to

enforce it. You shouldn't have to apply for it. You shouldn't have to

appear in front of somebody to have the system work for you. You

shouldn't have to seek legal counsel. Surely it must be in the interest

of the province of British Columbia to make sure that the system is

universally accessible, so that the moment a judge, at the time of a

divorce or of a declaration pursuant to the Family Relations Act, makes

an order for maintenance, it is automatically monitored and enforced by

the authorities. So it must be a universal program, not a selective

program. It must be universal with ease, so that you don't have to go

through a process to become a beneficiary of the program. The program

ought to be designed to automatically kick in and assist the spouse.

Second, it must be free. Why free? Because, as I said, from my

experience, and I think that this is the experience of the judges and

the lawyers that operate in the Provincial Court in particular.... I

must say I operated far more in the Supreme and County Courts than in

the Provincial. But usually, whether it's the Supreme Court or the

County Court or the Provincial Court, the experience has always been

that the spouse seeking to enforce a delinquent maintenance order is of

limited means. Usually we sort of pack it up and go into court and look

at the financial statements submitted by both sides, and seldom if ever

is there any ability on the part of a woman, particularly with

children, to pay for legal fees, which can be enormous. And of course,

given this government's approach to legal aid, that's often

unavailable. Therefore one of the barriers to enforcement of

maintenance orders, the largest hurdle faced by a woman, is the

financial barrier. Because when a woman walks into a law office — I'm

sure this will invite some response by the opposite side — she assumes

that it's going to cost her something. Before she makes the decision to

walk in, she's got to decide whether or not she has enough money —

whatever it may be — to pay for that legal service. On $900 or $ 1,100

a month — and I'm picking situations that I think are in the upper

range — there's not disposable income sufficient to secure legal

services. A difficult choice has to be made then in terms of either

triggering the legal process or, alternatively, seeking government

assistance in the form of welfare.

So the system, in my submission, ought to be freely available. That

doesn't mean that it has to be costly to the taxpayer. It doesn't mean

that it has to be privatized. In fact, there are models in this

country, and I'll use the model which I'm sure everyone is familiar

with — Manitoba. The studies that have been done conclusively

demonstrate that the province of Manitoba actually makes money on the

system in terms of saved welfare costs versus the administration of the

scheme. In other words, the province of Manitoba saves more money in

social assistance or welfare costs through an automatic, free,

universal enforcement process than it does in paying for the costs of

operation of that process.

To say that the system must be free doesn't mean that it's going to

be a burden on the taxpayer. In fact — I'm sure there is no debate on

this — the experience has been to the contrary: that it is

cost-efficient for the state to provide a properly

[ Page 3199 ]

functioning, accessible, universal, broadly based, provincewide

program to enforce maintenance orders — cost-efficient for the

province. I think that's important for a government obsessed with

numbers and the bottom line and often unable to meet its projections in

terms of the bottom line — if we take a look at the Coquihalla and some

of the other things this government has been responsible for. In any

event, the system must be universal first of all, and second, it must

be free.

Third, it is my submission that the system must limit association

with spouses. The reason I say that is because one of the most

difficult things that happens after a separation, of course, is the

conflict between spouses. I've been involved in too many instances as

counsel, when I know that a husband's wish to drop off a cheque at the

house was really wanting an excuse to be there for other reasons.

Inevitably, there was conflict, discord, argument over access, argument

over custody, argument over when the child is to be returned, argument

over what was going to happen on Christmas or Easter vacations or on

Dad's birthday or Mom's birthday, and occasionally physical problems,

all in front of the children.

It's not a healthy arrangement to have a system which — as has been

my experience is the case here in this province — promotes association

between the spouses. There must be an intermediate vehicle which

accepts payments from the spouse and transfers the payments to the

recipient spouse, because if you set up that type of vehicle, you

evaporate a lot of the potential for conflict. I want to tell you,

again from my experience as counsel on these matters, that there are a

lot of women in particular who are very scared about their husbands,

frightened about what's going to happen when he shows up at the

doorstep. Maybe nothing happens, but they go through a gut-wrenching,

terrifying experience wondering what's going to happen when he shows up

to drop off the cheque. I've been involved in more than my share of

restraining orders in this regard — and this comes from a person who

practised very little family law; most of my experience is really in

civil and commercial litigation, particularly insurance law. But I've

seen just too many of those types of situations. So the third attribute

certainly must be that there must be a limited association between

spouses.

[12:00]

The next attribute.... As I say, later on I intend to attach these

attributes to the legislation that's before the House. That's not to

say the legislation fails on all these accounts; it's just simply that

I want to tie it in with the legislation that's before the House.

The next attribute which I think is important is that we ought to

limit the legal involvement of the courts. As I said earlier on — and I

don't want to dwell on this point extensively — I just don't think that

the judiciary, the court system that we've got in this province — and

this is not a slur on those that work in the system; it's just a

comment on the system — was ever designed to deal with these types of

situations. There must be a far more expeditious way in a system that

involves judicial non-interference, if I can put it that way.

So we ought to limit the involvement of the courts and have an

administrative scheme that does not provide potential for all sorts of

legal entanglements; a scheme that doesn't allow for interminable

delays, for issues of procedure and technicalities, but that gets on

with the job of making sure that the money is transmitted from the

delinquent spouse to the recipient spouse.

It would seem to me. If I was drafting legislation in this instance,

that I would not want legislation that opened the opportunity, for

those who wanted to abuse it, to interminable delays, hearings,

adjournments and all that kind of stuff, which just simply puts greater

stress on the family.

I see it's 12 o'clock and perhaps it would be a good idea at this

time to adjourn the debate. I have some more comments to make and

perhaps I will make those after the lunch break.

Mr. Sihota moved adjournment of the debate.

Motion approved.

Hon. Mr. Strachan moved adjournment of the House.

Motion approved.

The House adjourned at 12:03 p.m.

[ Return to Legislative

Assembly Home Page ]

Copyright 1988, 2001, 2008: Hansard Services,

Victoria, British Columbia, Canada