Bill 30 & IPPs - provincial government overrides local zoning

Bill 30 & IPPs, the legislation and the debates

Bill 30, 3rd reading, BC Legislature, 15-May-2006
Hansard, Monday, 15-May-2006

Bill 30, 2nd reading, BC Legislature, 11-May-2006
Hansard, Thursday, 11-May-2006

Bill 30, Section 53, Utilities Commission Act

William Andrews, lawyer, comments on Bill 30 s.53

Bill 30 - Miscellaneous Statutes Amendment Act (No. 2) 2006

At third reading, three sections of the original Bill 30 had been removed. Amendments to the Utilities Commission Act were originally in section 56, which at third reading became section 53.

Bill 30 & IPPs: BC's communities fight back

City of Victoria to Premier Campbell, 11-May-2006

Union of BC Municipalities Resolution, 22-Sep-2004

UBCM meeting on Bill 30, 25-May-2006

Bill 30, 3rd reading, BC Legislature, 15-May-2006

Hansard
Monday, 15-Mar-2006

Context: Bill 30 is called the Miscellaneous Statutes Amendment Act (No. 2), 2006. It contains modifications to a number of statutes. Bills like this are frequently referred to as "housekeeping" bills, but unfortunately are sometimes used to slip highly consequential legislative amendments through in such a way that nobody notices.

Section 56 of Bill 30 makes changes to the Utilities Commission Act (UCA) that appear to have the effect of protecting independent power project (IPP) proposals from obstruction by local governments.

Leonard Krog spoke strongly against the s.56 changes at second reading on May 11. Here are some excerpts from the May 15 Hansard transcript of the debate on s.56. The full transcript on s.56 follows. At the end, as you will see, s.56 was passed, with yea-nay delineation on party lines.

Some excerpts:

Hon. R. Neufeld: What will happen is that we will continue to work with local government wherever those projects may be across the province, to have discussions. They will continue to have input into whether or not projects should move forward. But at the end of the day, the sole decision-maker will be the province of British Columbia. Other than if it's on private land; then, the bylaws or zoning of a municipal or regional district will actually apply.

Hon. R. Neufeld: [not at his most articulate] What I want to put on the record here is that the sole decision-maker for independent power production across the province — which is in the interests of every British Columbian regardless of what philosophy you believe or where you live — is to the benefit of all of us. That has to be one single decision-maker so that we can move those projects forward with consultation, with people affected, the same as we do for all the others: oil and gas, forestry, mining or B.C. Hydro, to continue to get this province back to where we should be today, which is self-sufficient.

with respect to the Seabreeze Energy Cascade Heritage Power Project - a dam on the Kettle River just before its confluence with Christina Creek flowing out of Christina Lake ...

Hon. R. Neufeld: [not at his most helpful, in fact, if you understand what he is intending to clarify here, you are a rare British Columbian indeed.] As I understand, and as I'm told by the ministry, currently the way the act stands, it could probably go ahead, whether the regional district agreed to or not. With this amendment, actually, it can't go ahead because the powerhouse would be located on private land. I will go back to some of the parameters that you have to have to actually have this change apply: (a) it has to be totally on Crown land and (b) they have to have a power purchase agreement with B.C. Hydro, Powerex or Fortis. Because part of it is on private land, I'm told that the regional district has the ability to actually zone it, and so I think we move forward from there.

So, where we end up is the Bill 30 s.56 change to the UCA is intended to expand the provincial government jurisdiction with power projects so they are just like mining, forestry or oil & gas - the provincial government will be "The Decider". (An unplanned echo of Stephen Colbert's mockery of George Bush's assertion that he is "The Decider"
http://video.google.com/videoplay?docid=-869183917758574879)

Hon. R. Neufeld: Whether it's, as I said, a B.C. Hydro project where there's one decision-maker, whether it's mining where there's one decision-maker, whether it's forestry where there's one decision-maker or whether it's oil and gas where there's one decision-maker, the process will be the same.

Here is the full transcript on s.56. At the end, as you will see, s.56 was passed, with yea-nay delineation on party lines.

On section 56.

L. Krog: This particular section, as the minister is well aware, has created a great and appropriate public reaction amongst municipal governments across the province. This section, on the face of it, appears to be some bit of innocent housekeeping, but in fact appears to provide that municipal zoning and municipal regulation will be superseded by the provincial government. I'm wondering if the Attorney General can confirm that.

Hon. R. Neufeld: Actually, there are some qualifications. This applies to Crown land only. They have to have a power-purchase agreement with either Powerex, B.C. Hydro or Fortis. They have to have completed all the processes that would have to be done federally or provincially, as in permits, DFO. All of those processes they must complete before this would take place.
[1700]

G. Robertson: I would like to ask the minister, specifically on section 56…. A number of concerns have been voiced to me in my office from municipalities, from regions around the province. I have the great benefit of having lived in a number of regions around the province — the Fraser Valley, up the coast, the Cariboo — in the past and have lots of connections where great concerns have flowed over the past days concerning section

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the province — the Fraser Valley, up the coast, the Cariboo — in the past and have lots of connections. Great concerns from there have flowed over the past days concerning section 56 and what they consider a direct assault on local government authority that is reprehensible, unacceptable and should not be — I repeat, should not be — passed into legislation in this House.
No doubt the minister is familiar with the concerns of a number of these regional districts and municipalities. I'm sure their voices have been heard. I should hope they've been heard. The communications have been loud and clear, written and verbal, and certainly, this trust with the levels of government, with local government, is in dire danger with this piece of legislation.
Overruling local government zoning authority is no small matter. I express the concern on behalf of the many people around the province who have come to me raising this as a big issue and one that will not go over smoothly, particularly given the commitments that this government has made on paper with an MOU to UBCM. I can't for the life of me understand how this government can go back on its word, its signed word, to local governments that they would respect the autonomy, the authority of local governments.
I'm curious, then, with section 56: what authority and autonomy will local governments have over IPPs on Crown land in the future?

Hon. R. Neufeld: What will happen is that we will continue to work with local government wherever those projects may be across the province, to have discussions. They will continue to have input into whether or not projects should move forward. But at the end of the day, the sole decision-maker will be the province of British Columbia. Other than if it's on private land; then, the bylaws or zoning of a municipal or regional district will actually apply.
This puts it in the same form that B.C. Hydro now is. B.C. Hydro is not subject to local zoning. It hasn't been for as long as B.C. Hydro has been around, so these independent power producers must have a contract with either B.C. Hydro, Powerex, which is an arm of B.C. Hydro, or Fortis, which provides electricity in the Kootenays.
It puts it on the same level also with a single decision-maker the same as mining is. Local zoning does not affect decisions about mining. That's one decision-maker: the province. Forestry is also exempt. Oil and gas are also exempt. So it puts independent power producers on the same level as those interests, and those interests are in the public interest of the province as a whole. That's why we're moving forward with that.

G. Robertson: The minister refers to this section 56 as, basically, levelling for IPPs this authority or autonomy away from local government…. What's not clear to me here is the authority or autonomy over local watersheds. The difference here is there's water at play.
Certainly, B.C. Hydro has this similar authority. B.C. Hydro is a publicly owned utility — the last time I checked, it was a publicly owned utility. IPPs are not publicly owned utilities by their nature and end up with what are, in effect, water rights in watersheds in local communities.

[1705]

Will the minister comment specifically on that point? Are there water rights that are not under the authority or autonomy of local governments, or does this distinguish

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the minister comment specifically on that point? Are there water rights that are not under the authority or autonomy of local governments? Or does this distinguish this authority and autonomy to the province for IPP water rights, effectively superseding the local governments when, in fact, they currently have authority and autonomy over the water in those watersheds?

Hon. R. Neufeld: Whether it's an independent power producer or B.C. Hydro, the Crown still owns the water across the British Columbia. A water licence would have to be issued, whether it's with B.C. Hydro or an independent power producer, to generate electricity.

N. Macdonald: Section 56 of Bill 30 removes local government from zoning decisions related to independent power projects on Crown land, and it defies a written agreement between the provincial government and the representative of local government. The regional district of Squamish-Lillooet passed a resolution condemning this break of faith by the provincial government and demanded removal of section 56 from Bill 30. Past presidents of the Union of B.C. Municipalities have condemned section 56. The Okanagan Mainline Municipal Association, at its annual general meeting, passed a resolution condemning section 56. Over this past weekend, the lower mainland local government association passed a resolution calling for government to abandon its plans to remove local people from land use decisions. As well, the executive of the Union of B.C. Municipalities has passed a motion demanding that the government reconsider. Given that the government has a memorandum of understanding with the UBCM where the
province committed to respectful process, how can the government support this section?

Hon. R. Neufeld: Yes, in the fall of 2004 the government actually signed a memorandum of understanding with the UBCM to begin discussions in regard to independent power producers, and they're across British Columbia. Those discussions went through 2005, and in March of this year the UBCM was informed by both the Deputy Minister of Energy and Mines and the Deputy Minister of Community Services that we felt the MOU had reached its conclusion, that we received out of it what we could actually receive out of it, and that we would actually have to think about how we were going to deal with the issue.

N. Macdonald: I draw your attention to the memorandum of understanding and the language that is there. It is clear the province entered into an agreement on how they were going to handle independent power projects. Is the minister saying it is acceptable to arbitrarily step away from that and to now go on its own and leave the UBCM out of the process altogether?

Hon. R. Neufeld: I'm not going to repeat my answer again. They had some pretty fulsome discussions with the UBCM, the ministries that were all signatory to the agreement to discuss issues around independent power producers. The UBCM was informed in March of '06 that we had probably received — without sitting there for another year talking about the same issues over and over again and not getting to resolve some of them — the information that we could, and we would see what we could do to move forward.

N. Macdonald: The inconsistency is with the principles that the ministry and this Premier espouse consistently about the value of local government, the importance of local government being part of decisions such as this. This goes against speeches, the service plan for Community Services, answers to questions. Consistently, from 1993 on, the person who is now Premier talked about a certain way that local government was going to be dealt with. I fail to see how this is in any way consistent with what the Premier said, what the Minister of Community Services has said and, in fact, what was promised to the UBCM with this memorandum of understanding.

[1710]

The question is: will the minister reconsider? Will the minister enter into a process that they have already agreed to, which is the reasonable process that leaves decision-making in the local area — where it should be?

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agreed to, which is the reasonable process that leaves decision-making in the local area, where it should be?

Hon. R. Neufeld: An interesting comment the member made at the end, saying that the decision should be at the local level. I want to draw the member's attention back to the '90s. For ten years the NDP, which the member is a part of, was in government. Not once did they bring forward a piece of legislation that would say local zoning would apply to B.C. Hydro. Not once did they bring forward legislation that said local zoning would affect mining across the province. Not once did they bring forward a piece of legislation that said forestry would abide by local zoning, and not once did they bring forward an amendment of any kind about oil and gas that said it would be subject to local zoning.
There are some things that are in the best interests of all British Columbians, regardless of where you live. The member, I think, knows well from where he comes from…. Me, too, where I come from. A lot of the electricity is generated either in the Kootenays or in the Peace country. It is in the general public good that we enjoy almost the lowest hydro rates in all of Canada, and we want to continue to do that. We want to continue to be able to provide the electricity that British Columbians need.
We're in a position now where last year we imported almost 13 percent of our demand in the province. We need to look towards how we get to self-sustainability in British Columbia. I think it bodes well, regardless of who you are or what party or philosophy you believe in, that we should actually be self-sufficient. I mean, if the members don't think we should be self-sufficient, I'd be interested in hearing that, but I think we should be.
We have worked very successfully with UBCM, very successfully, and I know our position will continue to be that. We will continue to work with regional districts and municipalities, wherever it applies, in dealing with independent power production across the province and how it affects different communities. We know that. We're not cutting off that discussion. I mean, if B.C. Hydro moves forward with a project, they have discussions at the community level. We will with IPPs also.
In fact, the Utilities Commission Act, section 121, almost states that we could move forward on that act the way it is. What we're doing is clarifying that section so that everybody understands what that section actually means.
We will continue to work cooperatively with the Union of B.C. Municipalities and with communities across the province, as we have been.

S. Simpson: They're interesting, the minister's comments about working cooperatively. Clearly, the Union of B.C. Municipalities doesn't feel like the government's been very cooperative, considering that their executive passed a resolution this weekend asking the government to withdraw section 56 and go back into discussions with the UBCM to try and find an actual solution.
I want to ask a question in relation to this memorandum of understanding as well. The minister will know…. He was one of the three signatories to this on behalf of the government. It says that the province and the UBCM share the common goals of fostering cooperative intergovernmental relations, recognizing the jurisdiction and accountabilities of both orders of government, facilitating the responsible development of clean, renewable energy resources to meet the energy needs of British Columbians, and providing efficient and effective IPP review and approval processes for both orders of government.
My question for the minister is: does he still support those common goals that he signed on to in September '04?

[1715]

Hon. R. Neufeld: We will continue — and in fact, I said this earlier in response to the last question — to work with the UBCM. We will continue to work with communities across the province, as independent power producers are going to be required to provide the incrementalhydroelectricity moving forward. The same as we would if B.C. Hydro were doing it. Those discussions would still be there.
What we tried to do with the memorandum of understanding and what we glean from that was to work with the UBCM and with the people that they had appointed to that committee to get as much information as we possibly could so that we can actually get British Columbia back on track and start generating some electricity here so that we're not dependent on the open market.

S. Simpson: I appreciate the minister's answer, but it wasn't the answer to the question. I asked the minister whether these common goals, which are very specific, that were signed on to by the government including by this minister who signed his name to the document…. Does the government, does this minister still support these goals? Maybe the second part of the question would be if you don't support these goals, then what do you support?

Hon. R. Neufeld: I appreciate the member may not like my response. I understand that. Actually, a lot of the good news that happens in the province of British Columbia the members opposite don't like anyhow, so I fully understand that. I'm going to say it again — and I said it before two or three times — that we will continue to work with the UBCM to facilitate whatever discussions we can have on issues surrounding IPP development across the province of British Columbia. When I say across I mean from north to south, from east to west — wherever it happens.
We will continue to work with those regional districts or those communities and the UBCM to make sure we listen to all their concerns. I can tell the member that there are regional districts, local governments, who agree with what we're doing. They do believe it's in the public interest and in the good of everyone to actually have some of these things done as a single decision-maker. The same as all the other ones that I listed out.
I will ask this member, because he's just started questioning me: if he believes strongly that all power production should be dealt with, with local zoning, why wouldn't his party in the ten years that they were in government have actually brought forward that kind of legislation? Actually, they didn't. In fact, I can probably go back and cite quite a few instances where they just didn't even go to the B.C. Utilities Commission, and just told Hydro to do certain things in different areas of the province without any consultation with local government. I don't think I want to get into that. I can, if the member so wishes.
What I want to put on the record here is that the sole decision-maker for independent power production across the province — which is in the interests of every British Columbian regardless of what philosophy you believe or where you live — is to the benefit of all of us. That has to be one single decision-maker so that we can move those projects forward with consultation, with people affected, the same as we do for all the others: oil and gas, forestry, mining or B.C. Hydro, to continue to get this province back to where we should be today, which is self-sufficient. For ten years not much was built to keep us self-sufficient.

S. Simpson: Can the minister tell us…? My understanding now is now that he's ripped up the memorandum of understanding and told the UBCM and local government that they no longer have a role to play in questions around independent power, maybe he can tell us about the Utilities Commission's role because it appears now they will play that role — solely the Utilities Commission.

[1720]

As the minister will know, projects under 50 megawatts have very limited requirements around environmental assessment, around consultation. It's very limited. Could the minister tell us: how does he envision dealing with some of those questions of consultation on matters that are more involved than simply price and security of service on these projects when there isn't any role for local government or, for that matter, for anybody else to be engaged in a consultation that's required?

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and security of service on these projects when there isn't any role for local government or for that matter for anybody else to be engaged in a consultation that's required?

Hon. R. Neufeld: I want to put on the record and correct on the record that we did not tear up an MOU. We actually signed an MOU in the fall of 2004. We had those discussions up until early this year in March with the UBCM, its executive and different agencies and organizations. We had that discussion, and they were informed that we thought, as government, that we'd reached about as much information as we could with that MOU.
We also told them that we want — as I've said and put on the record quite a few times — to continue the discussion as we move forward under different processes, as to how we can actually include municipalities or regional districts that would be directly affected with independent power production that would happen close to their borders, I would assume, or actually on areas where they had some concerns. We want to continue to have that discussion with the UBCM so that they understand…. In fact, they do understand that we want to continue those discussions so these projects can move forward in a harmonious fashion.

S. Simpson: The minister may have some interpretation of what the UBCM understands. What I understand is that the resolution they passed on the weekend says they're opposed to this decision. They think it's wrong, and they think that the government should reverse it. The same as municipal associations across the province have said. The same as regional districts have said. The same as local governments have said. I'd be happy to have the minister produce that list of all those local governments who think this is a great idea.
I want to get back to the question around this process issue. It is my understanding that the Utilities Commission now will have responsibility. I can think back to the Terasen Gas situation when the Utilities Commission quite rightly…. Under their mandate and their idea of community interests, their view is the price and ensuring the security of the delivery of the service. I accept that. But these projects involve a whole lot more than that, as the minister will know, because the regional district in Squamish-Lillooet asked this minister to actually sit down in a cooperative fashion and develop a strategy that would allow this whole array of projects to go forward in their region. The response to that was this legislation.
Could the minister tell us: if the Utilities Commission is the single player with their regulatory approach and their approach to consultation, then how do communities get involved in this process? For example, the minister could tell us…. We know the Utilities Commission doesn't tend to go on the road all that often on small projects. How do people in outlying communities get to talk to the Utilities Commission if nobody will come and talk to them? At least their local government or regional district is there to talk to them.

[1725]

Hon. R. Neufeld: Actually, the role of the Utilities Commission will be to review the electricity supply contracts with B.C. Hydro, not individual projects. That's where the B.C. Utilities Commission will come into place. Projects that are over 50 megawatts, obviously, will have a

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the electricity supply contracts with B.C. Hydro, not individual projects. That's where the B.C. Utilities Commission will come into place. Projects that are over 50 megawatts, obviously, will have an environmental assessment process. That's the cut-off. Anything larger than 50 megawatts must go through the EA process.
That usually also brings the federal government process into light, and actually, there's room for discussion there. For those projects that are below the 50-megawatt threshold there is a process that takes place through Lands and also through the Ministry of Environment for enhanced water licence applications, where discussion can take place and local issues can be made known.
Also, again, I want to stress that the government is actually desiring to continue to work with the UBCM to enhance how we have those conversations with those communities wherever they might be affected. In fact, I have committed to a meeting with the UBCM later, I think, this month to discuss some of those issues, to talk about how we can have that enhanced discussion with the UBCM and with any affected communities, whoever they might be or wherever they might be.

S. Simpson: If the Utilities Commission doesn't make these decisions, if they're dealing with the energy supply question — which is fine — then maybe, could the minister tell us who in fact will make the decisions within his ministry on these projects? And what will their criteria be to deal with the issues that may have been dealt with through zoning?

Hon. R. Neufeld: The main decision-makers the member requests me to name are the Land Act, Agriculture and Lands — obviously, for land tenure. The water licence would be under the Ministry of Environment and also, in many cases, would be DFO — Department of Fisheries and Oceans.

G. Gentner: I'm intrigued. I want to know: what exactly is the meaning of IPPs? I know it's a simple question. But for the record, are we talking here what IPPs are going to be affected by this legislation? Are we talking about run-of-the-river projects? And/or are we also talking about possible power from wind companies?

Hon. R. Neufeld: Independent power producers: IPPs. The ones that would be dealt with under this act are those that have a contract, a power purchase agreement with B.C. Hydro, Powerex or Fortis for delivering electricity domestically in the province and would encompass all forms of generation of electricity.

G. Gentner: Therefore, all forms of electrical power would include incineration of garbage for power — if I have it correct. For example, let's talk about Compliance Coal Corp. It has a lease to extract coal at Tulameen basin for use of a thermal, coal and wood-burning plant in Princeton. That would be seen as an IPP?

[1730]

Hon. R. Neufeld: Only if they have a power purchase agreement with B.C. Hydro, Powerex or Fortis.

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Hon. R. Neufeld: Only if they have a power purchase agreement with B.C. Hydro, Powerex or Fortis.

G. Gentner: Therefore, if Compliance was to get a call in Princeton, they would not have to abide by any of the regulatory authorities or local government zoning bylaws by the district of Princeton?

Hon. R. Neufeld: I don't know how much clearer I can make it. It has to be on Crown land — the project. The project has to have an energy purchase certificate with B.C. Hydro, with Powerex, with Fortis. For domestic use, not for export. I think that is about as plain as I can make it.

G. Gentner: I'm glad we got that straightened out, that if a coal-burning plant was to, through Crown land, get approval for the call, it would be exempt from local jurisdictions, and that would also mean other types of IPPs, such as a natural gas company that could want to burn natural gas for generation of power as well.

Hon. R. Neufeld: All forms of generation.

G. Gentner: Now we know the criterion is quite large. All power producers, whether it be coal-burning or necessary run-of-the-river, could have their process expedited by not following local government rules and regulatory authorities. My question therefore is: would the municipal authority have any say on setback requirements or relative to storage of coal at a coal-burning plant?

Hon. R. Neufeld: Yes, and we would still have discussions with the communities, whoever they are or wherever they would be, in regards to these issues to make sure that community concerns are taken into account before approvals can go ahead for this type of project.

G. Gentner: If a coal-burning plant was to haul coal to its plant, it would not have to follow the weight restrictions of a local road?

Hon. R. Neufeld: It would have to follow the weight restrictions of a local municipality if in fact….

G. Gentner: I'm confused now. My understanding is that this new section eliminated the authority of the local government in the name of the needs of producing power. So how is it the weight restrictions would apply here and other regulatory authorities imposed by local government wouldn't?

Hon. R. Neufeld: Weight restrictions would be applied on provincial highways the same as weight restrictions would be applied on municipal highways. That's normal process that takes place.
It is much different than what we talked about in this section, which is that at the end of the day if independent power producers meet certain criteria, , there will be one decision-maker, which will be the province of British Columbia, similar to all of our other industrial activities in the province.

G. Gentner: Just a few quick questions. How would this new section work with the local government streamside protection bylaw? Would they not be voided?

[1735]

Hon. R. Neufeld: It would respect streamside setbacks as long as they were reasonable and had some good process gone into setting

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Hon. R. Neufeld: It would respect streamside setbacks as long as they were reasonable and had some good process gone into setting those distances.

G. Gentner: Reasonable setbacks is an arbitrary decision made by this ministry.
The question I have, also, is relative to the utility corridors to an IPP. These utility corridors, whether it would be gas lines, transmission lines — they are necessary in order to produce power. What type of authority could the local government exert to prevent or look after its own interest in the location of these utilities? Will the IPP have authority to determine where they go, with help from the ministry?

Hon. R. Neufeld: Utility corridors are now exempt — most of them, if not all — from municipal bylaws, and we would expect that the independent power producers would work with communities, as we have talked about — for the best interests of everyone — to actually site their lines.

C. Wyse: I will need a brief second or two to lay the groundwork for this question. A couple of weeks ago I attended, as other members from this House did, a meeting with the North Central Municipal Association up in Fort St. John. I was approached by local elected people as well as residents of the area around this particular bill and this particular section.
I know that the minister has addressed the comments around the actual broken promises, the memorandum of agreement with UBCM, and in one aspect has addressed the local issues being removed out of local government. However, in discussions with residents of this area, and in a tour they took me on, they were able to show me clearly that there are easily situations that may be developing and under consideration in that part of the province for IPPs, for windmills, that, in actual fact, given the conditions as is understood, would allow for the erection of up to three windmills to be within 500 metres of individual residents who have been in that country for a very, very long period of time.
Needless to say, that raises concerns with residents in that part of the province. Likewise, they showed me the effect that sour gas dispersal has had upon residents up in that area and how the lack of controls has led to sour gas being let off in the area of communities of up to 100 to 200 people. S
Madam Speaker, what we've heard so far is information around how the local governments may have the possibility for addressing these issues, but my question is on behalf of the local residents who have had the local governments disenfranchised. This my question to the minister: how are local residents to address the locally driven questions of a land usage nature, given that local planning has been removed for IPPs and whereas, in actual fact, in the past the local residents approach had been through the local government?

[1740]

Hon. R. Neufeld: First off, and I've been saying this from the start, independent power producers in the ministry will continue to work with individuals, regardless of where they're at in the province of British Columbia — about siting, about setbacks and, in fact, will actually enjoy having that input from local residents as to how they feel about some of these projects

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and, in fact, we'll actually enjoy having that input from local residents as to how they feel about some of these projects. We will move forward on that note.
The member brought forward something that actually doesn't have anything to do with the section, but it's sour gas. Maybe I should put on the record that we have initiated a committee structure in South Peace, in North Peace and in Fort Nelson to discuss with residents a whole host of issues as they relate to the oil and gas industry, not just sour gas.
I'd like the member to actually tell me where excessive amounts of sour gas were released inside of communities of 200. Maybe later on he could tell me where they are. I know that sour gas is a by-product of some development of oil and natural gas, and the ministry has some pretty stringent rules around sour gas and what can be released and what can't be released.

C. Evans: The debate has been pretty high level and almost theoretical, and I'd like to bring it down to a specific in some of the time we have left. The specific I'd like to discuss is the Cascade Canyon power project proposed for the Kettle River, where the Kettle River, after it runs from Grand Forks area to Christina Lake, runs through a canyon. The fall as the river runs through the canyon is quite terrific, creates white water and wonderful visuals. It is right next to the Trans Canada Trail and ultimately winds up at the community swimming hole and next to the golf course.
At the turn of the previous century a company had a proposal to take some of the water in the canyon and run it in a penstock down to where the swimming hole is and put it through a power plant to sell electricity in Grand Forks. The project didn't last very long. It has been reinvented a hundred years later by Seabreeze, who desires to take 50 percent of the July flow, put it in a penstock and run it down to a power plant.
Using all that as background, it's my understanding that the regional district director, the previous regional district director, the regional district itself and the chamber of commerce all oppose this project. The reason for that is not because they don't like industrial development. On the contrary, it was a sawmilling town. There was a sawmill there, and they closed the sawmill, and the town is trying to survive by moving to a tourism economy. People go there to experience the canyon and Trans Canada Trail and the river and the various amenities. This idea of putting an industrial plant right where the last sort of community value that might create economic development is anathema to the local folks.
The first question to the minister has to do with the present system before we pass this law. Am I correct in understanding the local regional district could preclude the power project at present by zoning this land for non-industrial uses?

Hon. R. Neufeld: Because the member brought this up during second reading debate, I actually had the ministry do a little work prior to discussion on the sections. As I understand, and as I'm told by the ministry, currently the way the act stands, it could probably go ahead, whether the regional district agreed to or not. With this amendment, actually, it can't go ahead because the powerhouse would be located on private land.

[1745]

I'll go back to some of the parameters you have to have to actually have this change apply: (a) it has to be totally on Crown land; (b) they

H080/lgb/1745

would be located on private land.

I will go back to some of the parameters that you have to have to actually have this change apply: (a) it has to be totally on Crown land and (b) they have to have a power purchase agreement with B.C. Hydro, Powerex or Fortis. Because part of it is on private land, I'm told that the regional district has the ability to actually zone it, and so I think we move forward from there.

Just so the member knows, there is an environmental assessment process as we speak, so I'm not going to want to get too deep into that particular project. It's ongoing and reaching its final stages.

DFO has had an opportunity to be in there, as I understand. The environmental assessment process has worked on that project, and there's been an awful lot of local input. I think the member is quite correct in what he says — the input they've received — but I hope he understands a little better now what this act would do.

C. Evans: Using the case.… Thanks to the minister for his explanation of the private land issue. I take it that what the minister is suggesting is that although the act applies to the Crown land part of the project, the regional district could still zone the private land in the way they desire and preclude going ahead.

However, in order that other people in the province with similar examples would understand this debate…. Should the power plant be legal and the act be passed, it is my impression that, because it's all on Crown land, then whatever zoning steps the local government might take would become irrelevant and cabinet would make a decision. My question is: what happens then? Will there be a formal cabinet debate on applications such as Cascade Canyon in future? Or will the debate happen purely at a regulatory body, like the BCUC?

The Chair: Members, matters happening in cabinet are not for discussion in this chamber.

C. Evans: Asking a question of the Chair. Is that…?

An Hon. Member: It's a process question.

C. Evans: Through the Chair to the minister, then: will the government be involved in saying yes or no at any point on a power project if it is acceptable in the regulatory regimes?

Hon. R. Neufeld: If a project actually has all the approvals I spoke about earlier that are required by the project, it is actually entirely on Crown land and the project has a power purchase agreement with either Powerex, B.C. Hydro or Fortis, then, hypothetically, yes. That process could go ahead.

C. Evans: That was exactly the answer I was afraid of, and it leads me to my last question. If we are in this legislation precluding local government from acting in a democratic way to represent the feelings of local citizens and the answer the minister just gave is that, theoretically, if the regulatory regime agrees, government doesn't ever actually have to make a decision, how then would a citizen who was for or against a proposal speak to a politician ever again who has decision-making power on a power project to which this legislation applies?

[1750]

Hon. R. Neufeld: The public, actually, will have quite a few opportunities to have their input, whether they agree

H081/rxr/1750

Hon. R. Neufeld: The public will actually have quite a few opportunities to have their input, whether they agree or disagree with the project, much as they do now. Whether it's, as I said, a B.C. Hydro project where there's one decision-maker, whether it's mining where there's one decision-maker, whether it's forestry where there's one decision-maker or whether it's oil and gas where there's one decision-maker, the process will be the same.

If they have to go to the Minister of Agriculture and Lands, there will be an opportunity there for people to bring forward their concerns. And they would have to go — let's say it was run of the river — to the Ministry of Environment, obviously, because of the water licence issue, so there would be opportunity for them to say yea or nay to those projects.

I said at the outset that what we want to do is work with the UBCM. In fact, I've asked the UBCM how we can work together to make sure that that process allows for that kind of input from the people across the province on projects that may happen in their areas.

[1755]

H082/ajc/1755

Section 56 approved on the following division:

YEAS — 42

Falcon Reid Coell
Ilich Chong Christensen
Les Richmond Bell
Bennett Roddick Hayer
Lee Jarvis Nuraney
Whittred Horning Cantelon
Thorpe Hagen Oppal
de Jong Campbell Taylor
Bond Hansen Abbott
Penner Neufeld Coleman
Hogg Sultan Krueger
Mayencourt Polak Hawes
Yap Bloy MacKay
Black McIntyre Rustad

NAYS — 32

Lekstrom S. Simpson Evans
Fleming Farnworth James
Kwan Brar B. Simpson
Cubberley Hammell Coons
Thorne Simons Gentner
Routley Fraser Horgan
Lali Dix Trevena
Bains Karagianis Ralston
Krog Austin Chudnovsky
Chouhan Wyse Sather
Macdonald Conroy

href="http://www.legis.gov.bc.ca/hansard/38th2nd/H60515p.htm">http://www.legis.gov.bc.ca/hansard/38th2nd/H60515p.htm

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Bill 30, 2nd reading, BC Legislature, 11-May-2006

Hansard
Thursday, 11-Mar-2006

Well, the effect of this innocuous language is essentially to say to the municipalities and local governments of British Columbia: "When it comes to producing power, any zoning you wish to pass gets trumped." Leonard Krog in the BC Legislature, 11-May-2006

COMMENT:Bill 30 is called the Miscellaneous Statutes Amendment Act (No. 2), 2006. This is more Liberal hide-the-dirt legislation - it's a similar deception to that in which ownership restrictions on Terasen shares were removed, for example.

During the campaigns against the GSX Pipeline, Port Alberni Generation Project (PAGP), the possibility of a gas-fired generation project in North Cowichan, and the Vancouver Island Generation Project (VIGP)-Duke Point Power (DPP), matters often came to a head over local zoning.

Coalbed methane threatens local jurisdictions across the province, and in 2003 the Union of BC Municipalities (UBCM) passed a resolution brought by the Comox-Strathcona Regional District demanding that the provincial government put all coalbed methane development work and issuance of permits on hold.

With Bill 30, the BC Government is setting itself up to head off future local objections to power projects by means of zoning. Under this legislation, there is every likelihood that PAGP would have been a done deal.

In BC Hydro's F2006 Call for Power, there are two coal-fired generation projects. Will the people of Princeton and the Similkameen or of Tumbler Ridge have any voice with approval of these projects, if BC Hydro selects one or both of them?

Leonard Krog, NDP MLA for Nanaimo, spoke to these provisions in Bill 30 in the Legislature on Thursday. What follows is from Hansard.
http://www.legis.gov.bc.ca/hansard/38th2nd/H60511p.htm

... there's another section, ... on the face of it, just a simple bit of language. That's section 56, which changes the Utilities Commission Act — fairly innocuous. It says:

In this section, "authorization" means (a) a certificate of public convenience and necessity issued under section 46, (b) an exemption from the application of section 45 granted, with the advance approval of the Lieutenant Governor in Council, by the commission under section 88, and (c) an exemption from section 45 granted under section 22, only if the public utility meets the conditions prescribed by the Lieutenant Governor in Council. (3) For the purposes of subsection (2) (c), the Lieutenant Governor in Council may prescribe different conditions for different public utilities or categories of public utilities.

You know, the average British Columbian, having heard me read that, would wonder what was going on. They would wonder why the members of the opposition would be standing up here haranguing the government over this seemingly innocuous language. Well, the effect of this innocuous language is essentially to say to the municipalities and local governments of British Columbia: "When it comes to producing power, any zoning you wish to pass gets trumped." It gets trumped.

"What we're saying is that local government, notwithstanding the agreement of this government entered into a couple of years ago to respect the jurisdiction of local government, is going to get trumped by the province's desire to encourage the production of power in various parts of the province, notwithstanding the jurisdiction of local and community governments to pass laws under the Community Charter or the Local Government Act."

How is it coming before this House? In an open, frank, clear and transparent a way? No. It's being slid in, in a miscellaneous statutes amendment act, when in fact it represents a dramatic change to the law.

Quite justifiably, the municipalities of this province are catching up. The Squamish-Lillooet regional district, having passed an emergency resolution — very concerned about this — has written to the Minister of Energy, Mines and Petroleum Resources. I want to read it into the record here today. This was passed by the Squamish-Lillooet regional district on May 2 at a special meeting.

Whereas the province of British Columbia and the Union of B.C. Municipalities, by memorandum of understanding signed September 22, 2004, are committed to fostering cooperative intergovernmental relations, recognizing the jurisdiction and accountability of both orders of government, facilitating the responsible development of clean renewable energy sources to meet the energy needs of British Columbians, providing efficient and effective IPP review and approval processes for both orders of government; and whereas the amendments to the Utilities Commission Act proposed by Bill 30 will serve to eliminate local government involvement and engagement in IPP review and approval processes, remove jurisdiction of local government over IPPs on Crown land, remove local government from the responsible development of clean, renewable energy sources, impair cooperative intergovernmental relations; and whereas these amendments will have significant impacts for local governments throughout the province when the full scope and
potential of IPPs are considered — e.g., wind, geothermal, coalbed methane and run-of-river projects; therefore, be it resolved that the province of British Columbia be requested to immediately set Bill 30 aside and return to working with UBCM to complete the commitments of the MOU on independent power projects as quickly as possible.

http://www.legis.gov.bc.ca/hansard/38th2nd/H60511p.htm

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Bill 30, Section 53, Utilities Commission Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

53 Section 121 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, is amended

(b) in subsection (1) (a) by adding "an authorization granted to" after "commission or", and

(c) by adding the following subsections:

(2) In this section, "authorization" means


(a) a certificate of public convenience and necessity issued under section 46,

(b) an exemption from the application of section 45 granted, with the advance approval of the Lieutenant Governor in Council, by the commission under section 88, and

(c) an exemption from section 45 granted under section 22, only if the public utility meets the conditions prescribed by the Lieutenant Governor in Council.


(3) For the purposes of subsection (2) (c), the Lieutenant Governor in Council may prescribe different conditions for different public utilities or categories of public utilities.

http://www.legis.gov.bc.ca/38th2nd/3rd_read/gov30-3.htm

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William Andrews, lawyer, comments on Bill 30 s.53

For those interested in the details, here is how Bill 30, s.53 would change s.121 of the Utilities Commission Act: The underlined portions are the changes.

s.121 as it would read if amended pursuant to s.53 of Bill 30:

121 (1) Nothing in or done under the Community Charter or the Local Government Act

(a) supersedes or impairs a power conferred on the commission or an authorization granted to a public utility, or

(b) relieves a person of an obligation imposed by or under this Act or the Gas Utility Act.

       (2) In this section, "authorization" means

(a) a certificate of public convenience and necessity issued under section 46,

(b) an exemption from the application of section 45 granted, with the advance approval of the Lieutenant Governor in Council, by the commission under section 88, and

(c) an exemption from section 45 granted under section 22, only if the public utility meets the conditions prescribed by the Lieutenant Governor in Council.

(3) For the purposes of subsection (2) (c), the Lieutenant Governor in Council may prescribe different conditions for different public utilities or categories of public utilities.

Explanation:

Section 45 requires a public utility to get a CPCN for a generation project.

Section 46 allows the BCUC to issue a CPCN upon application.

Section 88 allows the BCUC to exempt “classes of persons” (types of public utilities) from commission orders and rules.

Section 22 deals with companies that make their own power and sell some or all of it. (This includes both companies like Alcan that generate power and use some and sell some, as well as regular IPPs that generate electricity for sale.)

Minister’s Order M-22-0205, pursuant to s.22 of the Act, exempts IPPs from the need to obtain a CPCN for generation projects.

Comments:

1. Independent Power Producers (IPPs) are already exempted from the requirement to obtain a CPCN under s.45. For example, when BC Hydro proposed the Vancouver Island Generation Project it had to apply for a CPCN. But when Hydro later sold the VIGP assets to the IPP Pristine Power (Duke Point Power) and made an Electricity Purchase Agreement (EPA) with Pristine the regulatory review by the BCUC was under s.72 of the Utilities Commission Act for approval of the EPA; a CPCN was no longer required.

2. The effect of Bill 30 on municipal powers vis-à-vis IPPs would be: Nothing done under the Community Charter or the Local Government … supersedes or impairs … an authorization granted to a public utility that is an exemption from the requirement to obtain a s.45 CPCN granted pursuant to s.22 (i.e., an IPP) if the IPP meets the conditions specified by the Lieutenant Governor in Council (presumably, the conditions specified in the s.22 exemption order). What this appears to mean is that a municipality cannot validly require IPPs to obtain CPCNs for projects within the municipality. But that’s puzzling, because municipalities wouldn’t have had the power to do that anyway.

3. Exactly what the detailed legal effect of Bill 30, s.53, is not clear to me yet. Not that I disagree that it appears to be aimed at protecting IPP proposals from interference by municipalities – which is something IPPs have been asking for.

William J. Andrews, Barrister & Solicitor
1958 Parkside Lane, North Vancouver, BC, V7G 1X5
Phone: (604) 924-0921 Fax: (604) 924-0918
Email: wjandrews@shaw.ca

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City of Victoria to Premier Campbell

No.1 Centennial Square, Victoria
British Columbia, Canada, V8W 1P6

Telephone (250) 361-0200
Fax (250) 361-0348
Email mayor@victoria.ca

THE CITY OF VICTORIA
OFFICE OF THE MAYOR

May 11, 2006

Premier Gordon Campbell
Room 156, West Annex
Parliament Buildings
Victoria, BC V8V 1X4

Dear Premier:

At the May 11, 2006, Committee of the Whole meeting, City Council supports the following resolution and urges you to reconsider Bill 30:

WHEREAS the Province of British Columbia and the Union of BC Municipalities, by Memorandum of Understanding signed September 22, 2004 are committed to:

- Fostering cooperative inter-governmental relations,

- Recognizing the jurisdiction and accountability of both orders of government,

- Facilitating the responsible development of clean, renewable energy sources
to meet the energy needs of British Columbians,

- Providing efficient and effective IPP review and approval processes for both
orders of Government.

AND WHEREAS the amendment to the Utilities Commission Act proposed by
Bill 30 will serve to:

- Eliminate local government involvement and engagement in IPP review and
approval processes,

- Remove jurisdiction of local government over IPP’s on Crown Land,

- Remove local government from the responsible development of clean,
renewable energy sources,

- Impair cooperative inter-governmental relations, and

AND WHEREAS these amendments will have significant impacts for local
governments throughout the province when the full scope and potential of IPP’s
are considered (e.g. wind, geo-thermal, coal bed methane and run of river
projects);

THEREFORE BE IT RESOLVED that the Province of British Columbia be
requested to immediately set Bill 30 aside and return to working with UBCM to
complete the commitments of the MOU on Independent Power Projects as
quickly as possible;

AND FURTHER THAT copies of this resolution be forwarded to the Premier,
UBCM, MLA’s and British Columbia local governments.

CARRIED

Download file

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Union of BC Municipalities Resolution

The Province and UBCM share the common goals of:

• Fostering co-operative inter-governmental relations;
  
• Recognizing the jurisdiction and accountabilities of both orders of government;
  
• Facilitating the responsible development of clean, renewable energy sources to meet the energy needs of British Columbians,
  
• Providing efficient and effective IPP review and approval processes for both orders of government
  

The purpose of this agreement is to establish:

• Means through which local governments and the Province can co-operate and collaborate to realize the common goals.
  

The Province and UBCM agree to work toward achieving our common goals by:

• Creating an IPP coordinating group with a member from Land and Water British Columbia, Community Aboriginal and Women's Services, Energy and Mines and UBCM. This group will work cooperatively with related groups such as the "one window regulatory approach steering/working committee";
  
• Participating in a workshop facilitated by the Fraser Basin Council to bring proponents, Federal, provincial and local authorities together to discuss IPP development;
  
• Developing best practices to coordinate efficient project reviews through
  harmonization of provincial and local review processes;
  
• Working to ensure that local, regional and provincial interests are appropriately considered in the review of projects and to work toward harmonization of provincial and local government project review mechanisms, including the Waterpower Project Guidebook, provincial operational policies, Land and Resource Management Plans, Sustainable Resource Management Plans, Regional Growth Strategies, and local government planning and zoning processes; and
  
• Jointly communicating the outcomes of the work to all interested parties including IPP developers, local governments and provincial agencies.
  

SIGNED on behalf of the PROVINCE OF BRITISH COLUMBIA by:

The Honourable George Abott, Minister of
Sustainable Resource Management and
Minister responsible for Land and Water B.C.

The Honourable Murray R. Coell, Minister of
Municipal Affairs

The Honourable Richard Neufeld, Minister of
Energy and Mines.

SIGNED on behalf of the UNION OF BRITISH COLUMBIA MUNICIPALITIES by:

His Worship Frank Leonard, Mayor
and President of Union of
British Columbia Municipalities

All signatures dates September 22, 2004

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UBCM meeting on Bill 30, 25-May-2006

UBCM is convening a consultation session for members in relation to the introduction of Bill 30 - Miscellaneous Statutes Amendment Act No. 2 in the provincial Legislature. Within the Bill, an amendment is proposed to the Utilities Commission Act to exempt certain public utilities from having to conform to local government bylaws.

Please click on the following link to download the member consultation session notice and registration form:

Member Consultation Notice and Session Registration Form

Link to UBCM document

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