On its own, Bill 12 is not inherently problematic. However, Bill 12 cannot be taken in isolation. It must be considered in conjunction with the recent passing of the federal omnibus Bill C-43. Buried within this more than 475 page bill was Division 16, Canada Marine Act.
As noted in a legal backgrounder put together by West Coast Environmental Law, Division 16 of Bill C-43 poses
“a serious threat to legal protection from and public oversight of environmental threats from activities that occur in ports, like coal storage and LNG facilities.“
The explanatory note to Bill 12 states that
“This bill provides authority to the Lieutenant-Governor-in-Council to authorize a member of the Executive Council to enter into an agreement contemplated by section 64.6 of the Canada Marine Act.
Let’s go to section 64.6 of the Canada Marine Act. It says this:
“The [federal] Minister may enter into agreements with any person or body, including the government of a province, with respect to the administration and enforcement of a regulation made under subsection 64.1(1).“
And so we move to 64.1(1). It states:
“The Governor in Council may make regulations respecting any undertaking or class of undertakings that is situated or proposed to be situated in a port, including regulations respecting the development, use and environmental protection of the port as it relates to the undertaking or class of undertakings.“
Now, this may seem all very innocuous — a short bill, two pages, a couple of definitions, not that much — but the implications are profound not because of what’s in Bill 12 but because of what’s not in it and what is implied if we adopt it.
I’m profoundly troubled that the federal government has opened up significant gaps in our regulatory framework with the passing of Bill C-43, and with the introduction of Bill 12 our government is complacent in this deregulation.
Let me provide a very specific example. With the passage of Bill C-43, the federal government can now sell its federal land to a port authority. In doing so, the Canadian Environmental Assessment Act, 2012 and the Species at Risk Act both no longer apply. Since British Columbia does not have species at risk legislation, this is quite problematic. British Columbia does have environmental assessment legislation but jurisdictional issues would almost certainly exist.
At the same time, the port authority can lease their newly acquired land to an industrial client. If Bill C-12 is enacted, the federal government can enter into an agreement with the Province of British Columbia to administer and enforce the industrial activities at this port. Unless also specifically transferred, in my view the federal government would retain the power of regulation creation and the province would be stuck enforcing and administering such regulations.
What’s also deeply troubling is that section 64.1(2) (k) and (l) grant the federal government powers to:
(k) prescribe rules respecting the confidentiality or disclosure of any information obtained under the regulations;
(l) provide for the retention or the disposal, including the destruction, of documents, regardless of medium, that are created or submitted under the regulations.
As noted in the West Coast Environmental Law backgrounder mentioned above, through the passage of Bill C43, the federal cabinet now has the power to:
“Hand over regulatory, administrative or even judicial control of industrial activities in ports to any person, including a province, port authority or even industry itself.”
If Bill 12 passes, the province could then enter in an agreement with the federal government to take over regulatory, administrative or judicial control of industrial activities in BC ports. Again, in an of itself, this may not seem like a bad idea. But in my view it’s critical that the province ensure that requirements under the Canadian Environmental Assessment Act, 2012 and the Species at Risk Act are not bypassed. At the same time, its critical in my view to ensure that industrial activities in British Columbia ports are conducted in an open and transparent way to ensure that the interests of British Columbians are protected.