Today in the legislature I rose to speak to Bill 21 — Environmental Management Amendment Act, 2016. Bill 21 is designed to provide the legal foundation for a spill preparedness and response regime in BC. The legislation requires new requirements for spill preparedness, response and recovery, and it creates new offenses and penalties. However, almost all important aspects of this bill are left up to the development of regulations. As such, it should be viewed as an enabling will with much more to come.
Below is are the text and video of my speech.
A. Weaver: I rise to speak to Bill 21, the Environmental Management Amendment Act, 2016. Now, this bill is designed to provide the legal foundation for a spill preparedness and response regime in British Columbia. The legislation, as we just heard from the member for Saanich North and the Islands, puts in new requirements for spill preparedness, response and recovery, and it creates new offences and penalties. However, the problem with this bill is not so much what’s in it but what’s not in it. This bill puts much, if not most, of the items of interest into regulations.
I’d like to give just a couple of examples of this. I think it highlights what we’re debating. We’re debating an enabling legislation. It is clearly an enabling legislation, essentially enabling government to put in place regulations that will govern a spill response and regime. Before I can even get to a couple of examples of what is in regulations, I have to start with a definition. It’s a definition of what is called a responsible person. In this legislation, this amendment, a responsible person means “a person who has possession, charge or control of a substance or thing when a spill of the substance or thing occurs or is at imminent risk of occurring.” That’s what a responsible person is — rather broad.
I would like to give some examples, because I think it ultimately highlights how much we are essentially debating on here that has to be put in regulations. Section 91.11 would be added to the Environmental Management Act. Listen carefully:
“A regulated person must ensure that (a) on or before the prescribed date, the regulated person has a spill contingency plan that complies with the regulations….” What does that say? There’s a prescribed date; we leave it to government to prescribe it. The regulated person, whoever that might be, has a spill contingency plan that complies with regulations — not very specific.
So “(b) the spill contingency plan is reviewed, updated and tested in the prescribed manner and at the prescribed frequency….” Okay. That doesn’t give us an awful lot of comfort as to what that means.
Then: ” (c) the spill contingency plan is made available to employees of the regulated person in accordance with the regulations….” Essentially, it’s saying: “Trust us.”
And “(d) the spill contingency plan demonstrates that the regulated person has the capability to effectively respond to a spill, and (e) if required by the regulations, the spill contingency plan is published in accordance with the regulations.”
You can’t make this stuff up: “if required by the regulations, the spill contingency plan is published in accordance with the regulations ” Does this mean we wouldn’t actually publish the spill contingency plan if it’s not required? Does it mean that if in accordance with regulations at the end, we can just publish whatever contingency plan we want? I mean, it’s bizarre.
“(3) A regulated person must ensure that, in accordance with the regulations, (a) records respecting investigations, tests and surveys referred to in subsection (2) are prepared and kept for the prescribed period….” Again, what does that mean? And “(b) prescribed reports are prepared and submitted to a director….” What prescribed report? Then: “(c) employees of the regulated person receive prescribed training to prescribed standards” — I’m honestly not making this up — “employees of the regulated person receive prescribed training to prescribed standards.” “Trust us,” says the government. And ” (d) employees of the regulated person engage in spill response training exercises and drills in the prescribed manner and at the prescribed frequency.”
We are being asked to certainly trust that government will have the best interests of British Columbians at heart as they develop — in their words, not in our words — a world-leading spill preparedness.
That brings me to another point. You know, in the field of science, when we hear universities describe themselves as world-class, we know right away that they’re not, because the people who describe themselves as world-class clearly are not world-class.
World-class scientists are described by others as world-class. World-class institutions are described by others as world-class. When this government stands up and says it’s building a world-class spill response, I can assure you that it will be anything but world-class, because we would be expecting others to look at it and tell us if it were indeed world-class.
Given what we’ve seen around us under the professional reliance model that this government is so proud to put forward…. We only have to look at Mount Polley. Was that a world-class response? I don’t think so. What about what’s going on in Shawnigan Lake? Is this a world-class process for a world-class land use agreement for a world-class containment facility? I don’t think so. Is our LNG “we’re going to world-class standards, cleanest in the world” rhetoric…? I don’t think so.
This government is full of rhetoric. It’s full of rhetoric that’s substanceless, and frankly, I’m tired of it. I’m tired of hearing them call themselves world-class. British Columbians are tired of hearing them call it world-class. They’re not world-class. They’re parochial and inward-looking and missing the bigger picture of what’s going on in the world around us.
With that said, I did participate as an intervener in the Trans-Mountain hearings over the last couple of years. Let me tell you, that was a lot of work — hundreds of hours, hundreds and hundreds of hours by the team, poring through papers, many unresponded-to questions.
What I learned from that is that British Columbia — in fact, Canada — has simply not the capacity to respond to any spill of any magnitude — in particular, when it comes to diluted bitumen. We have no idea, at the basic level of science, as to what would happen if diluted bitumen were to spill in, say, the Fraser River. We know there’s a lot of suspended sediment there. We know that a lot of it would sink, but we really don’t have any idea.
Frankly, it is reckless. It is reckless for this government to be talking about even entertaining the Trans-Mountain proposal and putting in place these regulations now, while still allowing one tanker a week, laden with diluted bitumen, to leave the Burnaby ports through our coastal waters when we don’t even have a response capability today.
Where is this government actually standing up and being truthful to British Columbians that we need an immediate moratorium on the transportation of diluted bitumen in our coastal waters because, as admitted in this Environmental Management Amendment Act, we don’t have any standards here in B.C.? If there were a spill, my riding of Oak Bay–Gordon Head and the riding of my friend here in Saanich North and the Islands would be devastated, yet we have no management plan in place.
The government is trying to put a management plan in place, largely for land-based spills, but we have none now. It is reckless and irresponsible for us to continue to put diluted bitumen in pipes and to have that product shipped in our coastal waters. A relatively new Trans-Mountain Pipeline proposal that was built in the U.S. is already leaking. It’s already leaking. Right now, there’s cleanup and concerns happening there.
The basis of this bill obviously comes from the pressure of the major oil pipeline proposals. I recognize it’s coming in response to the government’s willingness and desire, or condition No. 3, to have in place what they call, through the usual hyperbolic rhetoric, “world-leading spill response.”
This is their attempt, but really, it’s an attempt that we don’t know anything about, because it just enables the government — as is becoming more and more typical — in negotiation with industry, to put in place regulations as they see fit and then surround it and wrap this in rhetoric about “world-leading” and “consultation” and “listening to First Nations,” etc.
One of the things that I do appreciate in this — because it’s a fundamental principle within the Green Party of British Columbia — is that it’s based on a polluter-pay model. The person who makes the mistake pays for the mistake, not the taxpayer. So in that regard, I support this aspect.
The other principles, not the only one of which is polluter pays, that this is based on are risk-based requirements, avoiding unnecessary duplication, a fair and transparent process, opportunities for First Nations and communities in preparedness response and recovery, and strong government oversight and continuous improvement.
Now, again, the strong government oversight is something that I would love to trust. I would love to trust that we would indeed have strong government oversight. But the evidence is that we cannot trust this government to provide that strong oversight. Again, I come back to Mount Polley. Again, I come back to Shawnigan Lake, and there are other examples out there.
Let me give you probably what I perceive to be the most worrying aspect of this bill. It may not seem like much. It’s on page 15 of the legislation. We turn to page 15, and we look at (d), where it says: “by adding the following paragraph.” I’m going to read this slowly. I can’t make this stuff up: “(d) exempting a person, an organization or a thing or a class of persons, organizations or things from any provisions of Division 2.1 or the regulations under this Division, in circumstances and on conditions that the Lieutenant Governor in Council prescribes.”
Essentially, this says: “Anything we have in here we can exempt, if we want, as cabinet.” “Trust us”? I don’t think so, hon. Speaker. That clause is deeply, deeply troubling.
While I will recognize that this bill is a step in the right direction, it’s not clear to me that I can support it at this juncture. It’s not clear to me that I can support it in light of the fact that I have no idea where the regulations are going.
I look forward to exploring that further at committee stage to see what the government has in mind so that we might, as a matter of record for future occasions down the road, get a sense of what the government’s intentions are with respect to each and every one of these sections, of which there are many, where everything is prescribed by regulations.