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Bill 49 - Protected Areas of British Columbia Amendment Act, 2012 - Hansard - Second Reading

Hansard, May 30 2012

Debate in the Legislature on the second reading of Bill 49 focussed on the removal of a section of the Dzawadi–Upper Klinaklini River conservancy to accommodate the design plans for the Klinaklini Hydroelectric Project. Rob Fleming, Michael Sather, and Claire Trevena led the debate and were quite informative.

Da’naxda’xw/Awaetlala First Nation v. British Columbia (Environment),
2011 BCSC 620




Afternoon Sitting

Bill 49 — Protected Areas of British Columbia Amendment Act, 2012

Hon. T. Lake: Mr. Speaker, I move that this bill be read a second time.

Mr. Speaker: Proceed.

R. Fleming: I rise to respond to this bill. But I think I must begin by pointing out the absurdity of the bill with elements that are certainly good news, including the 550,000 hectares of additions to lands that are protected and conserved in British Columbia, with the backdrop of a 30-minute debate allocation on Bill 49.

[L. Reid in the chair.]

There are a number of sections in this bill, there are a number of additions, deletions and removals from class A park status in British Columbia in every region of the province that deserve proper scrutiny — both at second reading and, of course, at committee stage of the bill. But the situation we're in is that debate is being limited and cut off. So I will only be able to very briefly raise a few points in debate this afternoon, given the actions of the government to constrain debate on this bill.

I will confine most of my comments to a couple of sections of the bill that amend the protected areas legislation of British Columbia. I think that the most controversial aspect of this bill — and it will be dealt with by two of my colleagues who are also on strict time limits during this debate — is around the Klinaklini River deletion from the Great Bear rain forest conservation area.

This potentially enables, through that removal of land, a significant addition of an independent power production hydroelectric facility in an area and on a river system that is unique and one deserving of protection. It's one of British Columbia's wildest rivers. It spans almost 1.5 million hectares, and it passes through some of the best remaining wilderness in southern British Columbia. Its clean waters nurture a wide range of species, including bull trout and salmon, grizzly bear and moose.


The river itself wends its way through 14 biogeoclimatic zones. There is incredible abundance and biological diversity and ecological value to the Klinaklini River.

This is exactly why government, when it was tested previously on this issue…. The previous Minister of Environment, Barry Penner, was forced to make a recommendation or reject an application that was potentially going to be included in a B.C. Hydro Clean Power Call. He took action on behalf of the government to decline the application to remove the land that is now contemplated in Bill 49 to be removed today. That was two years ago.

Government said no. Government said the nature values of this river, the importance to the fisheries and the wildlife that are sustained by an undisturbed Klinaklini River, were more important and were deserving of protection, as was originally enabled in the Great Bear rain forest conservation agreement. Government actually upheld an agreement that it had previously signed — and did the right thing, quite frankly. This bill this afternoon undoes that.

Now, undoubtedly the government is going to say they are responding to remedies that were recommended by the Supreme Court, because this has been the subject of litigation. Having read the reasons for judgment, that is not the case. Government did have options in what the justice had written about how the dispute might be resolved. Rather than pursue those opportunities, we're back at square one and the government is contemplating something that it rejected only two years ago.

That is the most controversial aspect of what we will be debating this afternoon, and it is why Bill 49 deserves proper and fulsome debate in this Legislature. The government intended to do it in the first instance, and it was persuaded not to shortly thereafter. That is an opportunity that is being denied to the members of the Legislature and members of the public, through their representatives and through other means of having this debate over Bill 49. There is no opportunity to have debate that could persuade government to do the right thing.

That was critically important two years ago, to bring certainty to the Great Bear rain forest conservation agreement and the intact borders of that conservancy, which is being undone, potentially, today with the swift passage and use of closure on Bill 49. I can't think of a better example of why British Columbians are being failed by these last two days of this legislative sitting than that aspect of Bill 49.

The debate deserves to be informed by other things that are happening simultaneously in the House of Commons today. What government will argue it is doing is simply allowing the claims by the power corporation to go forward to an environmental assessment, an environmental review process. Well, that review process is more than likely going to happen after the federal government passes its omnibus Bill C-38.

The Canadian Environmental Assessment Act will be completely different. The Fisheries Act of Canada will be rolled back 40 years and will completely lower the bar on what fish and fish habitat standards and protections are in law in Canada today.

That means that the environmental review that potentially this power corporation will participate in, if the government has its way and has the removal from the conservancy after passage of this bill, will be different. It will be to a standard that is completely unsatisfactory to the public, and it will not respect the natural values of the Klinaklini River, which I spoke to at the outset of this debate. That's the biggest concern in this bill. There are other concerns as well.


I think that while there are certainly merits to the removals and the additions around the Stawamus Chief project on the Sea to Sky corridor — and, again, debate will not adequately cover this — I think it's fair to say that there's some worry about proponents who wish to introduce commercial activities into provincial parks in British Columbia — and I think this is due to government cutbacks and the fact that the B.C. Parks budget is at its historic low. The proponent is now responsible for being the convener of community consultation to find out whether it's a good idea.

So the person or the company in charge of potentially introducing profit-making activity into parks is now responsible for community engagement around those kinds of activities, instead of B.C. Parks, instead of the province looking at its management plans for its own park areas.

I don't specifically have a great deal of concern around what this proponent seeks to introduce. I do have concern about the methods which B.C. Parks — the absolute hands-off approach they have taken to enabling discussions like this to happen in communities…. It sets a bad precedent. There's no question about it, and that's something that should be examined more fully in debate and won't be allowed to be.

The situation in B.C. parks is well known. That's an important backdrop to discussion around Bill 49. One can famously remember the now Premier, when she was an opposition critic, criticizing the NDP government in the '90s, when British Columbia became the first jurisdiction in North America to honour the UN commitment to set aside 12 percent of its lands. She criticized that because the budget for B.C. Parks was not being increased when the number of millions of hectares was being increased.

Well, fair point. But let's remind this government that in 2001, when they became the government, the B.C. Parks budget was $45 million. Today it is less than $30 million. Here we are this afternoon in Bill 49 adding 550,000 more hectares to protected areas. If you go through this bill, many of these are good gestures, and they are the results of community processes that have been ongoing. But the point remains the same — the one that the Premier, who was then an opposition critic, made.

You can't increase the responsibilities and the protected area status in the regions of British Columbia when you have half the park rangers, half the conservation officers and $15 million less of a budget today than you did a decade ago. Something has to give.

The problems in B.C. parks are well known. That's an important point to be making in this debate. The government needs to receive the message loud and clear that it's one thing to protect lands in various statuses of different types of park categories we have in British Columbia. It's another thing to actually do the work and make sure that the B.C. park system is vibrant, robust, enjoyable and serving British Columbians well. That is not the situation today in British Columbia as we debate Bill 49.

M. Sather: I rise to join second reading debate on Bill 49, the Protected Areas of British Columbia Amendment Act, 2012. There are some good parts of this bill which, unfortunately, due to the severe time limitation that we have, I won't be able to address. My colleague has addressed some of those.

I want to go on to the most egregious part of this bill, which is simply the altering of the boundaries of a conservancy to allow a major power project, a development which is the worst independent power project in the province in terms of environmental damage. This is on the Klinaklini River.

The Klinaklini was a significant part of the Great Bear rain forest agreement in 2006 involving First Nations, including the Da'naxda'xw-Awetlala First Nation; resource companies; and conservation groups such as Greenpeace, ForestEthics, the Sierra Club and B.C. Spaces for Nature.

The Great Bear rain forest agreement was to be based on ecosystem-based management that encourages conservation and sustainable land use practices. In 2006 Kleana Power Corp. launched its bid to develop a massive hydroelectric project on the Klinaklini River.

[D. Horne in the chair.]

The concept of conservancies as protected areas was brought into being in 2006. The test for issuing park use permits in conservancies explicitly restricts commercial logging, mining or commercial hydroelectricity. In fact, it prohibits those activities.


The Dzawadi–Upper Klinaklini River was officially established as a conservancy under the Park Act in 2008. On April 27, 2010, then Environment Minister Barry Penner said that the conservancy boundary would not be altered to allow the Kleana Power project to proceed. That was under a lot of encouragement from the opposition. I remember the debate at the time.

In June 2010 the project was dropped from B.C. Hydro's clean power call. Kleana Power, with their First Nation partner, Da'naxda'xw–Awetlala, took the government to court over Minister Penner's decision to not allow the boundary of the Dzawadi–Upper Klinaklini conservancy to be changed. That court case was heard from December 2010 to January 2011, with a decision on May 10, 2011, last year. There was some very interesting reading in that court case, which I will unfortunately not be able to cover in my brief time.

But I want to go to the remedies that the justice proclaimed under this. He said that the First Nation "seeks an order quashing the minister's decision of April 27, 2010, and declaratory relief directing the minister to recommend to cabinet that the boundaries of the Upper Klinaklini conservancy be amended." That's the important phrase in what was being asked for in this court case. "Alternatively, they seek an order directing the minister to consult in the government-to-government process."

The justice went on to say: "It's rare, however, for the court to become involved in directing a particular form of accommodation" — in this case, directing that the boundary be changed. The justice went on to say: "I do not consider this an appropriate case to direct the minister to make the recommendations sought. However, I have concluded that the First Nation are entitled to the following relief. (1) An order quashing the minister's decision of April 27, 2010." So the decision the minister made is null and void as a result of this court case.

"A declaration that the minister has a legal duty to consult the First Nation about their request for an amendment to the boundary of the Upper Klinaklini conservancy with a view to considering a reasonable accommodation." So the thing is that the government was told that they had to change the order, and they had to consult with the First Nation.

They've gone one step further. They have changed the boundary. I don't see any order in here. In fact, the justice specifically did not order that the government change the boundary, and yet they've gone ahead and done that on this most egregious of projects.

So we're going to have, again, I understand, a meagre 30 minutes to question the minister in committee stage about what took place and why it took place. I hope we get some answers, but it is a most disappointing move that this government has made.

If one looks at the map of the Klinaklini, what they've done is taken out the conservancy along a narrow band on either side of the river and called that part that they're taking out of the conservancy to allow the hydroelectric power project that is not allowed under the Great Bear rain forest agreement…. They're calling that a protected area. I'd like to know just what it is that that area protects after they're done with this project, should it proceed. I hope fervently that it does not.

I want to say a few words about the Klinaklini, because we need to understand just what we're looking at here. The Klinaklini drainage encompasses some of the least fragmented habitat on the Canadian west coast. So we're looking at the heart of wilderness on the B.C. coast. We're looking at a pristine environment that is put at risk by this legislation, put at great risk by this legislation.


The Klinaklini River, where this project is proposed, is home to all five species of Pacific salmon — coho, chum, chinook, sockeye and pink — plus, steelhead, cutthroat, Dolly Varden and oolichan.

It just boggles the mind that this project was ever allowed to get any consideration, but that speaks to the complete lack of fair process that this government has not had in place around independent power projects, and why an idea that has merit could have been good if it was done right by this government. But it's been done so wrong, and this is the most outstanding case of how wrong it's been done.

The Kleana Power project is a huge project which would produce up to 700 megawatts of power. We're not talking about a small project. This is a megaproject.

Pristine Power, who's one of the partners in the agreement — was or is, they keep switching hands — quoted annual generating capacity of 2,400 gigawatt hours. That's 50 percent of the expected power from Site C. As we know, that's a very large proposal, were it to be developed.

The river would be diverted over 16½ kilometres — put in a pipe over 16½ kilometres. Only the upper two kilometres are above an impassable barrier for fish. So 14½ kilometres, all five species of Pacific salmon, are going to be impacted if this thing ever goes ahead.

I cannot imagine how the government ever, ever let this get to first base. They have not only let it get to first base, but they've gotten themselves in a position where — and I applaud Barry Penner; I applaud him considerably for what he did in 2010 — unfortunately, they're up against the wall.

It has to be said, though, in reading the court case, that the justice noticed that the minister then, Barry Penner, never did make any petition about the negative environmental impacts of this project.

Having said that, my time is running short. I just want to add a couple more words about the project. If this ever happens, we're going to get the ramping problems. That's the up and down lowering of the river that we've seen at the Ashlu and the Mamquan that's killed fish. I just hope that the government will not proceed, because they don't have to. It has to pass an environmental assessment. Hopefully, that's not going to happen, if this ever comes to pass.

Sadly, there is much, much more to be said about this project, but I'll pass it over to my colleague for her comments.

C. Trevena: I was quite astounded not only when we had the time allocation giving us just 30 minutes to debate this bill, but that the Environment Minister, who is putting forward this bill…. Obviously, it's quite a complicated bill. There are a number of sections to it. There are a number of changes, some which are quite controversial, and that's what we're limiting ourselves to speak about.

The Environment Minister didn't justify any of this — did not describe the good parts; did not try to justify the controversial parts. When we have a debate, even though the time is short, the Environment Minister just stood up, moved second reading and sat down.

I think it shows the Environment Minister simply cannot justify anything that is in this bill, nor can he justify what his own government is doing in reducing our time to debate these very important issues. Because that's what we're here to do.

This isn't just an opportunity to rubber-stamp what is there for the government. It's an opportunity to have an honest debate, have an honest discussion and analyze what is good and bad for the people of B.C.


We on this side of the House think that some of the decisions in this bill are going to be very bad for B.C. My colleagues have been referring to the decision to remove part of the conservancy for the Upper Klinaklini. The Upper Klinaklini is an important part of….


C. Trevena: The policy analysts, I think, would learn a lot from how this government allows policy to be analyzed, because it really doesn't happen.

We have no opportunity to discuss or analyze anything that is here, nor get the justification for why we should be withdrawing this from a conservancy and allowing the potential — I know it's not there yet — for a massive power project to be built on the Klinaklini, a power project that is second only in size to Site C.

When the Environment Minister had the opportunity to introduce the second reading of this bill, he could have been thoughtful. He could have explained why he was going to make these decisions.

I raise this because it was during questioning in the estimates debate in May 2010 that I, as the member for North Island, was asking his predecessor, the then Environment Minister, Barry Penner, about the Upper Klinaklini and the plans for the conservancy. I was asking very specifically about whether the land conservancies would be respected in the development of independent power projects.

At that time there was a lot of thought that went into what should and shouldn't happen. His predecessor and very short erstwhile colleague said, after going through the benefits and potential impacts of the proposal, which enhances…. The script was just one paragraph. He went in and enumerated in — one, two, three, four, five — about seven paragraphs why there were many potential negative impacts in the project.

I'd like to read them into the record. The Environment Minister at the time, former B.C. Liberal Environment Minister Mr. Penner said…. He concluded that he would not remove this from the conservancy because of the increase in the water elevation of the river in the Upper Klinaklini, because of the number of fish-bearing tributaries that will be backwatered by the proposed construction of the intake structure. Fifty-seven hectares of riparian habitat "could be affected, 65 percent of which, we've been told, would be old-growth forests that would submerged or inundated…."

When we talk about "we've been told," one assumes it's the government and not just that one minister. So this present minister knows the potential damage that could happen with the potential of this power project going ahead.

This is not being done in a little back room. This was information given to the Environment Minister that he had the opportunity to justify in second reading but just decided not to bother, just to go along with his House Leader and say, "That's fine. We're going to give 30 minutes — just basically say goodbye to democracy and rubber-stamp whatever we want."

The other significant issues that the Environment Minister…. Who'd have thought. Here I am, defending the former Environment Minister, Minister Penner, here.

He said that there are a number of conservation data centre red- and blue-listed species with old-growth plant communities. A grizzly bear corridor "exists in the area, which serves an important function of connecting the coast to the Interior." There's evidence of moose in the corridor, concerns about "whether or not impacts to fish habitat could be mitigated, and there's concern that perhaps it could not be."

He concluded, having thoughtfully considered the evidence presented to him…. He thoughtfully considered that "after carefully considering all of the factors that I've enumerated, and probably some that I haven't…." The minister actually listened to advice, took in information and decided to think about the impacts that this could have, the reasons why a conservancy had been placed on this section of land.

It wasn't done lightly. It's not something where you get out a map and "where are we going to put a conservancy today?" You think about where you're going to put the conservancy.

So the then Environment Minister said: "after carefully considering all of the factors that I've enumerated, and probably some that I haven't, I have decided that I will not be recommending that the boundaries of the Upper Klinaklini conservancy be amended in order to facilitate this project."


The proponents of the project took this to court, as we heard, but the ruling of the court did not give the government carte blanche to withdraw it from the conservancy. It wasn't just: "Okay, you have no right to have this conservancy there. There is the opportunity here for the independent power project. We're going to ensure that you withdraw this from the conservancy."

What was suggested that the government do was to change the order and consult. Change the order and consult. That is extremely significant, because what this government has done is it has opened up the potential — and I know it isn't a given yet— for a massive and potentially extremely damaging power project in an area that has a huge amount of environmental sensitivity.

We don't talk about these things lightly. I mean, we have grizzlies in other parts of B.C. In B.C. we allow people to hunt grizzlies. We have moose in other areas of B.C., and we have an active moose hunt. We have things that are well utilized in our province. We have resources that are well utilized, and those include animal resources.

[Mr. Speaker in the chair.]

What we are seeing here is the opportunity for that to continue to be protected, for the government to consult — like the government could debate in this House. The government could explain its thinking when we get to committee stage.

These are issues that should not be done hurriedly. There was a lot of thought that went in. The government obviously has a lot of information about this particular area. It's part of an area that is very well known for its sensitive ecosystem.

The previous Environment Minister was very clear in his decision. He was very clear that he had that information, unlike the present Environment Minister, who sits idly by, waits and hopes that he'll get it rubber-stamped and everything will be fine and he'll never be challenged. I think that's the worst form of government and the worst form of acting as a minister.

The previous minister said: "the proponent had concluded that the project could not go ahead without an amendment to the conservancy boundary. Otherwise, the proponent's trajectory would have been through an environmental assessment process dealing with the federal government and so forth — the routine process."

What's different about this one is that the project requires, allegedly, change to make it happen — to be clear about that. That's what this government is doing. They're trying to make a legislative change to allow this to happen, something which was not allowed before, something which is really going to hurt the province and which has been done without due consideration.

I thank you very much for this and would hope that the Minister of Environment has some answers to conclude his remarks.

Mr. Speaker: Pursuant to the time allocation motion I now move second reading.

Second reading of Bill 49 approved on division.

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