Thursday, November 22, 2018

Skeena MLA Ross questions Minister on elements of new EA Process plans

Skeena MLA Ellis Ross had a number of questions for the Minister of
Environment and Climate Change on Wednesday, that as the Legislature
debated elements of proposed Environmental Assessment legislation

Ellis Ross has had a busy week in the BC Legislature, with Skeena MLA raising a number of questions and exploring a range of issues over the first three days of this weeks sessions.

Wednesday, Mr. Ross turned his attention the NDP governments plans to revise the Environmental Assessment process, asking a number of questions of Environment and Climate Change Minister George Heyman as part of the afternoon session.

Much of the focus for the Skeena MLA explored elements of the legislation related to First Nations and consent on environmental matters.

Section 7 is a hot topic lately, especially when we're talking about section 35 of the constitution versus UNDRIP. It's causing a lot of confusion because a lot of First Nations believe consent equals veto and that's continually to push. But in reading certain sections of this, I just want to clarify that we're talking about an agreement between government and a First Nation that allows the consent. But in other sections, we're talking about the decision of the minister that can override consent, whether it be in favour of or against the wishes of the First Nation.

My question to the minister is: was there any legal advice given to the minister on whether or not this clause fetters the decision-making powers of the minister or ministers in relation to a consent clause even before there's, let's say, a statement of a claim made — or maybe there are terms of reference made on an environmental assessment — or any other agreement, apart from what you're talking about with the First Nation?

George Heyman the Minister of Environment and Climate Change Strategy
spent much of the Wednesday session of the Legislature answering questions
related to Bill 51 the NDP government's proposed environmental assessment plans

In response, the Environment Minister noted that there had been legal advice sought and that it continues to be the case, adding that the clause is an override and expressly defines those situations where the Minister would not have that discretion.

Minister Heyman followed up with some further comments related to a subsequent observation from the Skeena MLA who inquired if the decision making powers of a minister were being restrained or diminished by the process.

Where there is a final agreement or where there is an agreement ratified by the Lieutenant-Governor-in-Council, that would be a binding agreement. Whether or not this section was in the act at all, that would prescribe the nature of the decision-making that would take place by the minister. 

A certificate would still be required. Conditions would still be considered and applied, but the requirement for consent would be defined in a binding agreement. That is exactly what's described in section 7: binding agreements.

The course of the discussion carried forward for close to an hour, with the Minister later observing as to  some of the opposition from the Liberal side of the house when it comes to the proposed legislation, particularly when related to the incorporation into the legislation of elements from the United Nations Declaration of the Rights of Indigenous Persons.

Well, I understand that the member doesn't support this act, that the member voted against the act and that the member believes that the inclusion of reference to the United Nations declaration on the rights of Indigenous peoples, as a mechanism to support reconciliation, may stand in the way of economic development. 

But in terms of the point that the member is raising, the point that the member is raising is subsection (2), after supporting reconciliation by allowing Indigenous nations to self-identify, provides a provision, in the unlikely event 203 Indigenous nations said they wanted to be recognized as participating Indigenous nations, to decide which had a reasonable claim that either their rights or their interests would be impacted by the specific project. 

 That happens today. That will continue to happen. The resources to make that determination are available. The fact is that there are a number of reasons that an Indigenous nation might want to be a participating Indigenous nation. It might be because of negative impacts on their territory physically, culturally or spiritually.

The Minister's response elicited a spirited rebuttal of its own from Mr. Ross, who looked to refresh Minister Heyman's memory when it comes to how the Skeena MLA views the proposed legislation and where his concerns related to it are found.

Yeah, well, correction: I did not say I don't support UNDRIP. I didn't say that I don't support any of this stuff. I'm just trying to clarify the difference between something that's basically defined in case law, especially under section 35 of the constitution, versus something that's undefined in UNDRIP. I still don't understand the relationship. 

 In fact, what I see is playing both sides of the fence here, politically, for the UNDRIP side, but really, you're sticking to case law, specifically section 35 of the Constitution Act. Everything you're talking about right now is existing practice. In your previous answer, you just said: "This is just notification that your rights and title will not be adversely affected by section 14." But then you're saying: "But there's a way to wean them out, if…." 

Well, that's the Crown's duty. That's the job. That's what I was getting at — which process will you use? That's what I was getting at, because it's clear to me that section 35 is still basically the law that the Crown is going to have to follow at the end of the day. Now, I understand there are certain aspects of any act, regardless of the issue, that government could use aspects of UNDRIP. 

But when we're talking about something as important as this, especially around the timelines and how the Crown is saying that they're going to speed up the timelines and make them more efficient, I don't see it with the lack of clarity between the constitution, section 35, versus UNDRIP.  

I didn't read any UNDRIP into this. I was asking specifically about the Constitution Act, section 35, and the pursuant case law. But I did not say anything about not supporting UNDRIP or anything like that. Those were your words not mine.

The commentary from the Northwest MLA was one of a number of discussion themes raised by MLA's during the course of the Wednesday debate which carried forward into the early evening period.

You can review the full run of the overview from the BC Legislature notes of the Wednesday session here.

The video of the day's proceedings can be found from the House Video for Wednesday Afternoon, Mr. Ross' contributions to the flow of the conversation starts at the 4:20 PM minute mark, with the review continuing on for much of the next hour..

As we noted on the blog yesterday, Opposition MLA's are not the only ones looking for some tweaks to the legislation, with a group of scientists known as the Earth to Ocean Group, based out of Simon Fraser University have listed three areas of concern they wish to see addressed.

Bill 51 continues to work its way through the Committee stage of the Legislature process, with more discussion to come in the days ahead prior to the NDP government putting the proposed legislation up for the final vote.

For more notes on the work of the Skeena MLA in the Legislature see our archive page here.

A similar review for North Coast MLA Jennifer Rice can be found here.

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