Hansard, May 31 2012
Towards the end of this transcript excerpt, after , Michael Sather reviews the Supreme Court decision that the government erred in not consulting adequately with the Da'naxda'xw-Awetlala First Nation about the Klinaklini project and the boundaries of the Dzawadi–Upper Klinaklini River conservancy. He says the government went too far by changing the boundaries in Bill 49.
Da’naxda’xw/Awaetlala First Nation v. British Columbia (Environment),
2011 BCSC 620
DEBATES OF THE LEGISLATIVE ASSEMBLY
THURSDAY, MAY 31, 2012
Committee of the Whole House
Bill 49 — Protected Areas of British Columbia Amendment Act, 2012
The House in Committee of the Whole (Section B) on Bill 49; L. Reid in the chair.
The committee met at 3:15 p.m.
On section 8.
M. Sather: Section 8 is on the Dzawadi–Upper Klinaklini River Conservancy, which we have a great deal of concerns about. I'll start off by asking the minister: what is now the Upper Klinaklini–Dzawadi Conservancy was within a protected area temporarily designated in 2002 under the Environment and Land Use Act. How long did this temporary designation last?
Hon. T. Lake: I'm advised by my very knowledgeable counsel that the protected area was created under the land resource management plan and handled not by this ministry but by the ministry responsible for lands. Today that would be Forests, Lands and Natural Resource Operations. At that time it could have been Agriculture and Lands. I'm not sure what the ministry was. But those were held in protected areas from 2002 till about 2006, when discussions on establishing conservancies began.
M. Sather: I'm wondering, then, why…. The Environment and Land Use Act prohibits commercial hydroelectric development. So why was Kleana Power allowed to submit an application to the environmental assessment office in 2005, when the area was already under protection that forbade the development of commercial hydroelectric projects?
Hon. T. Lake: I beg the member's…. Well, I could say to the member that we are not the ministry responsible for what was the land put under…. I misspoke, calling them protected areas. They were put under protection orders by the ILMB of the day. So it was not our ministry that was involved.
I'm sorry to tell the member that I don't know what limits were placed on uses — whether or not they had the right to apply to the environmental assessment office under that order of protection. It's a mechanism that we no longer use in the areas that we're discussing.
M. Sather: Well, my reading of the court case that ensued after 2010…. Under the ILMB, the same prohibition against commercial hydroelectric projects was in place, so I'm curious that they were permitted to put forward their involvement with the environmental assessment office at that time.
What's the purpose of the protected area now — that is, the small piece along the river that is now removed from the conservancy? What is the purpose of that protected area that remains along the river?
Hon. T. Lake: In this case there are, I believe, 62 hectares that are being taken out of the conservancy and held in a protected area. That allows the proponent in this case to conduct works that are necessary for application to the environmental assessment office.
That work could not be done in a conservancy. It can be done in a protected area. But otherwise, the area in question will be managed the same way as it would be if it were a conservancy.
M. Sather: In the court decision, Madam Justice said:
"In October 2007 what became known in these proceedings as the Kissinger proposal was formulated by the ministry staff assisting the petitioners. The plan was (a) a smaller area, to be identified on a map prepared by the ministry, was to provide Kleana with the working area that it provided; and (b) this area would be removed from the Upper Klinaklini conservancy when the conservancy was created by legislation and designated as a protected area under the Environment and Land Use Act so that other projects could not intervene."
Can the minister explain what that phrase "so that other projects could not intervene" means?
Hon. T. Lake: I believe the member is referring to an earlier judgment on the former proposal, which would have seen upwards of a thousand hectares removed from the conservancy. The latest court decision that we are reacting to in this case is that the order of the Minister of Environment of the day to not recommend an amendment to the boundary of the conservancy was overturned.
Today we are here, after consultation which was ordered by the court, with a much-reduced area to be considered for boundary modification, in this case going from 1,000 hectares down to 62 hectares.
M. Sather: The same passage in the court document in regard to the plan says: "If the project did not satisfy environmental assessment and permitting requirements or did not proceed to construction, all of the land area would return to the Upper Klinaklini Conservancy, and the boundary would be restored to its original…configuration."
Is there any time frame or limit on how long the project has to satisfy "environmental…permitting requirements under the EAO process"? Or does this project just keep hanging over our heads indefinitely?
Hon. T. Lake: Well, it can take, in some cases, considerable time to go through the environmental assessment process. The member is correct, in that this area is being removed from a conservancy and held in a protected area. If the proponent does not go through with an environmental assessment application or if that application were to be unsuccessful, then the land would return to the conservancy.
In terms of how long that could take, we've seen other projects take a considerable amount of time. It's unknown to me how long this would take. We do have timelines on our environmental assessment process, but the clock on that only starts ticking once the application has been deemed complete.
To the member: I can't tell you how long it would be held in this state, but certainly, there is a considerable amount of work that needs to be done in order to inform the environmental assessment process in a fulfilled and comprehensive manner.
M. Sather: Again, according to the court documents…. Then–Energy Minister Richard Neufeld wrote in May of 2008 that "Bill 38" — that's the one where the government said they weren't going to move the boundaries of the conservancy — "fulfils the government's commitment to implement the coastal land use decision and reflects the outcome of the central and north coast planning processes and subsequent government-to-government land use negotiations."
Is the government still committed to maintaining all the good work that was done during the LRMP process and the 2006 land use planning agreement-in-principle?
Hon. T. Lake: Absolutely. We are here today because of a court decision that said we had a duty to consult. We have consulted and come back with this very much reduced removal of land to allow consideration through a very comprehensive environmental assessment process. But we remain committed to all of the principles of the agreements that were made at that time.
M. Sather: Court documents state that "no one from the ministry, including the minister, had ever expressed any concerns about potential adverse environmental impacts." Does the minister sitting in this House today have concerns about the environmental effects of this project?
Hon. T. Lake: As the statutory decision–maker on any environmental assessment, I don't have an opinion as to whether there would be adverse environmental impacts. That's why we do an environmental assessment. It would be irresponsible for me to form an opinion before that process is complete.
M. Sather: It's sad that we don't have time to discuss in any great depth this important consideration, so I want to move on to the end part of the court documents.
Madam Justice said that the First Nations "seek an order quashing the minister's decision of April 27, 2010" — that was to not change the boundaries — "and declaratory relief directing the minister to recommend to cabinet that the boundaries of the Upper Klinaklini conservancy would be amended. Alternatively, they seek an order directing the minister to consult in government-to-government relations."
So the First Nation asked for the 2010 order that Barry Penner made to be quashed. They got that. They asked for the minister to be directed to recommend to cabinet that the boundaries of the conservancy be changed. They did not get that. They asked that, alternatively, they seek an order directing the minister to consult in the government-to-government process, and they got that.
Yet Bill 49 changes the boundaries of the conservancy, something the court didn't grant. Why is the government abandoning its previous attempt to protect the Klinaklini River and going beyond what the judge ordered?
Hon. T. Lake: Well, the court ordered that the Minister of Environment has a legal duty to consult with the First Nation, a proponent in this case, about their request for an amendment — and this is the important part — with a view to considering a reasonable accommodation.
If the member is suggesting that we would have a preconceived idea about what the consultation and accommodation would be, then I would say that that would not be consulting in good faith. This is what the court ordered, and we are here today as a result of that consultation and reasonable accommodation.
M. Sather: Well, the minister, I submit, is wrong. Madam Justice was quite clear. She said: "It is rare, however, for the court to become involved in directing a particular form of accommodation…. The consequence of the minister's breach of duty to consult is that no accommodation to the First Nation interests was considered."
But she goes on to say: "I do not consider this an appropriate case to direct the minister to make the recommendation sought." The recommendation sought was to direct the minister to recommend to cabinet that the boundaries be amended.
So she's very clear. She says: "I do not consider this appropriate." She goes on to say — and this is what the minister is talking about…. What she did order was to quash the minister's decision of April 27, 2010, and a declaration that the minister has a legal duty to consult. But there's no declaration removed by this minister or this court decision to change these boundaries.
I challenge the minister on that and ask: why is he going beyond what the court ordered, and why is he paving the way for Kleana Power to put through a project that never ever, ever should have been approved?
Hon. T. Lake: I do not believe the member opposite is a lawyer. I am not a lawyer. But we seek legal advice when we are handling situations like this.
The member has been quoting parts of Madam Justice Fisher's findings and her judgment. I will read into the record Madam Justice Fisher's statements, "Consultation that excludes the possibility of any form of accommodation is meaningless" — paragraph 188.
Finally, the justice added that the consultation requires "an opportunity for some dialogue on a government-to-government basis, with a view to considering a reasonable accommodation of the Da'naxda'xw's interests in allowing the project to be assessed in the environmental assessment process."
The Chair: Shall section 8 pass?
An Hon. Member: Division.
The Chair: By agreement, the division has been deferred.
Hon. T. Lake: We have a deferred division, so I report progress on the bill.
The Chair: Hon. Members, you've heard the question.