2003 Legislative Session: 4th Session, 37th Parliament
FIRST READING
The following electronic version is for informational
purposes only.
The printed version remains the official version.
HONOURABLE KEVIN FALCON
MINISTER OF STATE FOR DEREGULATION
Contents
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 In this Act:
"approval authority" means
(a) the government,
(b) a public body, including a person or other entity, empowered by an enactment or otherwise to perform a function or duty of government,
(c) a local government,
(d) a public body, including a person or other entity, empowered by an enactment or otherwise to perform a function or duty of local government,
(e) an agent of the government, of a local government or of a public body referred to in paragraph (b) or (d), and
(f) any other prescribed entity;
"constraint" means, in relation to a project, a measure that, unless replaced under section 4 or 5, may impede or otherwise interfere with the completion or operations of the project;
"designated project" means a project that is designated as a provincially significant project by order of the Lieutenant Governor in Council under section 3;
"government body" has the same meaning as in the Financial Administration Act;
"government corporation" has the same meaning as in the Financial Administration Act;
"local government" has the same meaning as in the Local Government Act, and includes the City of Vancouver;
"measure" means an enactment, directive, requirement, guideline, plan, program, policy, practice or procedure;
"person" has the same meaning as in the Interpretation Act and, without limiting this, includes the government, a government body and a government corporation and any partnership in which any one or more of them may be involved;
"project" includes the planning, development, construction, operation, modification or dismantling of a work, thing or activity;
"proponent" means, in relation to a project recommended to the Lieutenant Governor in Council under section 2, the person identified as the proponent by the minister in that recommendation;
"responsible minister" means, in relation to a designated project,
(a) the minister, or
(b) if another minister has been designated as the responsible minister for that designated project by the Lieutenant Governor in Council in the designation order made in respect of that project under section 3, that designated minister.
2 (1) The minister may recommend to the Lieutenant Governor in Council that a project be designated as a provincially significant project.
(2) Before the minister recommends a project under subsection (1), the minister must
(a) determine the identity of the proponent of the project, and
(b) obtain from the proponent a description of the project that
(i) in form and content is satisfactory to the minister, and
(ii) sets out the scope, intended operations, anticipated constraints and other details of the project.
3 (1) If the Lieutenant Governor in Council considers that a project in relation to which the Lieutenant Governor in Council receives a recommendation under section 2 is in the public interest and is or may be subject to a constraint, the Lieutenant Governor in Council may, by order, designate that project as a provincially significant project.
(2) If and for so long as a project is designated as a provincially significant project,
(a) the responsible minister and every approval authority having jurisdiction in respect of any resource or other thing or matter that is or may be affected by the designated project, or in respect of which any of the lands or water on, in, under or over which the designated project is or may be constructed, must take all reasonable actions to
(i) ensure that decisions they are required to make in relation to the designated project are made expeditiously, and
(ii) if and to the extent that it is decided that the designated project is to proceed, facilitate the expeditious completion and intended operations of the designated project, and
(b) the Lieutenant Governor in Council may, in the designation order or in any subsequent order, authorize the responsible minister, subject to section 4, to create measures to replace any or all of
(i) specified constraints,
(ii) constraints of a specified class, and
(iii) any constraints affecting the designated project.
(3) The proponent of a designated project must provide to the responsible minister, when and as required by that minister, any information relating to the designated project that the responsible minister may request.
4 (1) If the proponent of a designated project considers that the designated project is being or may be impeded by a constraint, the proponent must consult with the approval authority having responsibility for that constraint in order to arrive at a means by which the completion and operations of the designated project can be facilitated in a manner that is consistent with the reasonable requirements of the approval authority.
(2) The responsible minister may appoint a facilitator under section 8 to facilitate the consultations referred to in subsection (1) of this section.
(3) Once a facilitator becomes involved under subsection (2), the proponent and the affected approval authority must provide information as requested by the facilitator and must otherwise cooperate with the facilitator in fulfilling his or her responsibilities.
(4) If a proponent and an approval authority are able through the consultation process contemplated by this section to reach agreement on how a measure that is perceived by the proponent to be a constraint on the designated project can be overcome in a manner that is consistent with the reasonable requirements of the approval authority, the parties must enter into an implementation agreement in which
(a) the measure that is perceived to be a constraint is identified,
(b) the measures that the parties have agreed are to replace the constraint are specified,
(c) the approval authority agrees to waive performance of the constraint identified in paragraph (a) if the proponent performs the replacement measures specified under paragraph (b), and
(d) the proponent agrees to perform the replacement measures specified under paragraph (b).
(5) If an implementation agreement is entered into under this section in relation to a designated project and if the replacement measures specified under subsection (4) (b) are complied with, the following apply to the project whether or not the project loses its designation as a provincially significant project after the implementation agreement is made:
(a) compliance with the replacement measures is deemed to be full compliance with the constraints they replace;
(b) the approval authority must treat the project as having fully complied with the replaced constraints and, without limitation, must
(i) issue or provide, or facilitate the issue or provision of, the permits, approvals and consents that would normally be issued or provided had the replaced constraints actually been complied with, and
(ii) take, or cause to be taken, any actions that would normally be taken had the replaced constraints actually been complied with.
(6) For the purposes of subsection (5) (b), an approval authority referred to in that subsection must issue or provide, or facilitate the issue or provision of, the permits, approvals and consents referred to in subsection (5) (b) (i), and must take, or cause to be taken, the actions referred to in subsection (5) (b) (ii), in the manner, within the time and on the terms and conditions that
(a) are specified in the implementation agreement, or
(b) if not specified in the implementation agreement, would normally apply had the replaced constraints actually been complied with.
5 (1) If, at any time, the responsible minister considers that the proponent and an approval authority are not able, or will not be able, to reach an agreement contemplated under section 4 (4) in relation to a constraint, and the constraint is one that the responsible minister has been authorized under section 3 (2) (b) to replace, the responsible minister may
(a) develop detailed measures to replace the measure that is perceived to be a constraint, and
(b) set out those replacement measures in an order.
(2) In developing the replacement measures referred to in subsection (1), the responsible minister must consult with the proponent, the affected approval authority and any facilitator appointed in respect of the designated project under section 8.
(3) A responsible minister who makes an order under subsection (2) may at any time propose an amendment to the order, and, in developing the amendment, the responsible minister must consult with the proponent, the affected approval authority and any facilitator appointed in respect of the designated project under section 8.
(4) If an order is made under this section in relation to a designated project and if the replacement measures set out in that order as they apply to the designated project are complied with, the following apply to the project whether or not the project loses its designation as a provincially significant project after the order is made:
(a) compliance with the replacement measures is deemed to be full compliance with the constraints they replace;
(b) all affected approval authorities must treat the project as having fully complied with the replaced constraints and, without limitation, must
(i) issue or provide, or facilitate the issue or provision of, the permits, approvals and consents that would normally be issued or provided had the replaced constraints actually been complied with, and
(ii) take or cause to be taken, any actions that would normally be taken had the replaced constraints actually been complied with.
(5) For the purposes of subsection (4) (b), an approval authority referred to in that subsection must issue or provide, or facilitate the issue or provision of, the permits, approvals and consents referred to in subsection (4) (b) (i), and must take, or cause to be taken, the actions referred to in subsection (4) (b) (ii), in the manner, within the time and on the terms and conditions that
(a) are specified in the order, or
(b) if not specified in the order, would normally apply had the replaced constraints actually been complied with.
6 (1) The proponent must ensure that the designated project is undertaken, performed and completed
(a) in accordance with the project description provided by the proponent under section 2 (2) (b), and
(b) in a manner that will allow the designated project to be used only for
(i) the operations identified in that project description, and
(ii) other operations reasonably related to those identified operations.
(2) After replacement measures for a designated project have been set out in an implementation agreement under section 4 (4) or in an order of the responsible minister under section 5 (1) or (3), the proponent must ensure that the designated project is undertaken and performed in accordance with the replacement measures and,
(a) if the designated project is undertaken and performed in accordance with the replacement measures,
(i) the constraint replaced by those replacement measures does not apply to the designated project during the period for which it has been replaced,
(ii) no person is liable to any fine, penalty or offence for failing, during that period, to comply with the replaced constraint in anything done or omitted to be done in relation to the designated project, and
(iii) any rights or powers of any person that apply to or in respect of the replaced constraint, and any provisions of any enactment that apply to that constraint, including, without limitation, any offence, penalty, liability or similar provisions that apply in the event of a failure to comply with the replaced constraint, apply to the replacement measure, except to the extent that their application is limited by the implementation agreement or order, or
(b) if the designated project is not undertaken and performed in accordance with the replacement measures,
(i) the constraint the replacement measures were intended to replace applies to the designated project,
(ii) any rights or powers of any person that apply to or in respect of the replaced constraint, and any provisions of any enactment that apply to that constraint, including, without limitation, any offence, penalty, liability or similar provisions that apply in the event of a failure to comply with the replaced constraint, continue to apply to the designated project as if no implementation agreement or order had been made, and
(iii) the proponent must ensure that the designated project is undertaken and performed in accordance with that constraint.
7 (1) The responsible minister may, to ensure that the designated project is being undertaken and performed in accordance with section 6 (1) and (2) (a), monitor the designated project or cause the designated project to be monitored.
(2) For the purposes of subsection (1) of this section, the responsible minister may appoint a monitor under section 8.
(3) A monitor referred to in subsection (2) of this section may inspect the designated project to ensure that it is being undertaken and performed in accordance with section 6 (1) and (2) (a) and must
(a) carry identification in the prescribed form,
(b) present the identification to the owner or occupant of any premises being inspected under this section, and
(c) on the conclusion of the investigation, prepare a report on the results of that inspection and provide a copy of that report to the responsible minister and the proponent.
(4) A proponent must, on the request of a monitor referred to in subsection (2), give to the monitor every assistance in connection with the inspection that the proponent is reasonably able to give.
(5) An oral or written statement or report made by a monitor or any other person in an investigation under this section has qualified privilege.
8 Without limiting any other provision of this Act, the responsible minister may at any time appoint facilitators, monitors, consultants and experts and set their remuneration and the terms of their appointments.
9 The responsible minister may order the proponent of a designated project to pay prescribed fees or prescribed charges for all or part of the costs that are incurred, for or in relation to any matter under this Act, by or on behalf of the government or a person appointed under section 8.
10 (1) If the responsible minister considers that a proponent is contravening a provision of this Act or the regulations, the responsible minister, in accordance with the regulations, may do one or more of the following:
(a) order the proponent to comply with the provision, or comply to the extent specified by the order;
(b) order the proponent to cease all work on the designated project, or cease work on the designated project to the extent specified by the order;
(c) recommend to the Lieutenant Governor in Council that the designation for the designated project be revoked.
(2) The responsible minister may rescind an order under this section if the responsible minister determines that there were insufficient grounds for making the order.
(3) If the responsible minister considers that a proponent is not complying or has not complied with an order under subsection (1) (a) or (b), the responsible minister may apply to the Supreme Court for either or both of the following:
(a) an order directing the proponent to comply with the order under subsection (1) (a) or (b) or restraining the proponent from violating that order;
(b) an order directing the directors and officers of the proponent to cause the proponent to comply with or to cease violating the order under subsection (1) (a) or (b).
(4) On application by the responsible minister under this section, the Supreme Court may make an order it considers appropriate.
(5) An order or action of the responsible minister under this section is in addition to any offence, penalty or other liability that, in accordance with section 6 (2) (a) (iii) or (b) (ii), applies to the designated project.
(6) Section 5 of the Offence Act does not apply to this Act or the regulations.
11 (1) If there is a conflict between this Act and any other enactment, this Act prevails.
(2) Subsection (1) does not apply in the event of a conflict between this Act and
(a) the Agricultural Land Commission Act and the regulations made under that Act, or
(b) the Environmental Assessment Act and the regulations made under that Act.
12 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing an entity as an approval authority;
(b) prescribing the form of identification that must be carried by a monitor appointed under section 8;
(c) prescribing fees and charges for the purposes of section 9.
This Bill provides for projects that the Lieutenant Governor in Council considers are provincially significant projects to be expedited by requiring that any decisions that must be made in relation to the project are to be made expeditiously, and, if the project is to proceed, by allowing for any enactments or processes that might impede the prompt completion of the project to be overcome through negotiation or minister's order and replaced with alternative measures that are more in keeping with the expeditious completion of the project.
The proponent of the project is to provide a description of the project for the purposes of its designation and is to ensure that the project is completed in accordance with that description and with the measures arrived at to replace the identified constraints on the project. The minister is able to monitor compliance with these requirements and may make orders to ensure compliance or may request revocation of the designation.
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