Thank you. Minister.
Thank you, Mr. Chair. Clause 5 provides the regulator with the authority to hold a public hearing when it determines doing so would be in the public interest. A decision would likely be made by the regulator with input from the chief conservation officer, the chief safety officer, and other senior staff, and will be based on a review of concerns related to a particular application or activity. As I said, it's not clear what circumstances under the Oil and Gas Operations Act would require a mandatory public hearing. Thank you, Mr. Chair.
Thank you. Mr. O'Reilly.
Thanks, Mr. Chair. Yes, and I am very mindful of the Minister's opening remarks here about clarifying authority and ensuring Northerners are able to make decisions that support sustainable development. All of these things are good things that he said, but setting a floor for or at least requiring that there is a floor for when public hearings should be held, this clause doesn't do that. It just says it's up to the discretion of the regulator on a case-by-case basis, perhaps. I am not sure how this actually creates any certainty or clarity moving forward as to when a public hearing might actually be held. The reason why I raise this again is Northerners are used to water licensing, where there is a class A, class B water licences. A class B water licence, the thresholds for those are set out by regulation. Those thresholds require hearings on class A licences and amendments to class A licences. Class B licences, no problem; go ahead, and the board can issue a licence after it gives consideration. However, there is no floor here; there is no requirement for a floor. I say this because that is the kind of system that Northerners are used to through our co-management approach, is having a floor and setting clear expectations of when a hearing is going to be required. This bill does not do that, and maybe I would just ask the Minister why that certainty, that clarity is not provided. Thanks, Mr. Chair.
Minister.
Thank you, Mr. Chair. What I am going to say about this is these guidance notes will provide guidance when we move forward with this bill, and this will also allow for a public engagement process, so I do not see the need for doing this. Thank you, Mr. Chair.
Mr. O'Reilly.
Yes, thanks, Mr. Chair. Yes, so what I will say is that this bill does not deliver on the made-in-the-North approach in terms of providing certainty and clarity as to a requirement for the regulator to develop that list. It may happen. That's great, but there is no requirement in the bill for that to happen, so I don't think we have delivered on the promise. Thanks, Mr. Chair, and that is all I have for this clause. Thank you.
Thank you. Clause 5?
Agreed.
Thank you, committee. Clause 6. Mr. O'Reilly.
Thanks, Mr. Chair. I move -- or shall we wait until the motion is on the floor? I want to move this motion. Thanks, Mr. Chair.
If you have a motion to move, you can move the motion and the motion will be distributed after it is moved. Mr. O'Reilly.
Thanks, Mr. Chair. I move that clause 6 of Bill 37 be amended in proposed subclause 20.1(1) by striking out "in accordance with any applicable regulations" and substituting "including: (a) a list of all licences and authorizations issued under section 10 during the fiscal year, including the recipient of the licence or authorization; (b) a list of all declarations made under section 15 during that fiscal year; (c) a list of all certificates received under section 16 during that fiscal year; (d) a list of the information be made available to the public by the Regulator under section 22 during that fiscal year; (e) a list of all production orders made under section 55 during that fiscal year; (f) a list of any spills reported under section 62 during that fiscal year; (g) a list of all proofs of financial responsibility provided under section 64 during that fiscal year; (h) a summary of the activities of the committee during that fiscal year; (i) a summary of tolls and tariffs activity under part 1 during the fiscal year; (j) a summary of any inquiries held during that fiscal year; (k) a summary of all appeals heard during that fiscal year; and (l) a summary of all enforcement activities during that fiscal year." Thank you, Mr. Chair.
Thank you. There is a motion on the floor. The motion is in order. To the motion. Mr. O'Reilly.
Thanks, Mr. Chair. So all of this is being done in a very compressed time frame, of course, and I want to recognize that the regulator, OROGO, as it's called, the Office of the Regulator of Oil and Gas Operations, does produce an annual report. That's a good thing. This bill does contain a clause that would require the regulator, not just "may", the regulator "shall" within four months after the end of each fiscal year submit to the Minister a report on its activities, essentially.
What the purpose of this motion is, is to spell out what the content of that report might start to look like; and, in fact, some of these things are actually contained in the report that OROGO has voluntarily put together. So the way this was put together was we asked our law clerk to go through the bill to find out where clear permits, licenses, authorizations, decisions had been made with regard to oil and gas operations and put together that list for us, and that list was then provided to committee. We considered it. We felt that it was in the public interest to be more prescriptive in terms of the content of the annual report, just as we've done with a number of other bills that are before this House.
I guess it went back and forth between our department and our staff with the committee a few times. Unfortunately, we ran out of time. I wanted to bring this forward today so that it could receive consideration by the House, so that's the purpose of bringing this forward, and I am interested to hear what the Minister has to say about this more prescriptive list of what should be in the annual report. Thank you, Mr. Chair.
Thank you. To the motion. Mr. Testart.
Thank you, Mr. Chair. I'm wondering if I can inquire with our law clerk: part 3 of clause 6 says, "The Commissioner and Executive Council may make regulations for the purposes of the section prescribing form or content of the report." Is it conceivable that the details of this amendment that is before the House right now could be accommodated with clause 3? Thank you.
Thank you. Madam Law Clerk.
Mr. Chairman, I'm not confident that it could be. I think it would be a challenge because the motion is fairly prescriptive in terms of what is required in the annual report. There are some aspects of it that could be accommodated; there are others that could not be. So each separate item that is mentioned in the Member's motion would need to be looked at in terms of assessing how prescriptive it is.
For example, (j), a summary of any inquiries held, that could be further fleshed out by a regulation, but a list of all licenses and authorizations issued under section 10 is fairly prescriptive. So the extent to which the content of the annual report could be further massaged would very much depend on each listed item.
Thank you. Mr. Testart.
Thank you kindly. Speaking to the motion, I think that there is, of course, a real need for independent regulators in any jurisdiction, but these annual reports are important for the public's right to know about what regulators have been doing. I know there has been some concern that a prescriptive list is somehow impinging on the independence of the regulator, but I don't think that's, in fact, true in this case. As the honourable Member for Frame Lake said, this is laying out the decision points that are already in existence in the act and ensuring that there is guidance in the issuance of these reports, and that the public will have a right-to-know around all of these points.
I think it's entirely appropriate for the Legislature to be setting a standard for the regulator to follow. They could still be, of course, independent in their decision-making and independent in their governance. This is just setting out a very clear statutory requirement of what the public can expect in terms of annual reporting.
I see nothing problematic with this motion, and I will be supporting it. Thank you.
Thank you. To the motion. Would the mover of the motion like to close the debate on the motion? Mr. O'Reilly.
Thanks, Mr. Chair. Yes, I guess I had hoped to hear from the Minister on whether this was going to work or not, but we're not going to hear that until we get to a vote. Is that the procedure here?
Apparently the Minister was waving his arm around and I missed it, so I will give the Minister time to speak to the motion.
Good minister.
---Laughter
If there is a need to require specific content in the future, Bill 37 is required to have requirements related to the form or the content of the report outlined in the regulations. ITI staff has spoken with OROGO and the NEB regarding the proposed items that would be required under this motion, and OROGO and the NEB have raised concerns regarding the following: the onerous administrative burden created by some of these items; the lack of clarity and appropriateness of some of these items; duplication between certain items; and an incorrect statutory reference.
It is also not clear how the new confidentiality provision proposed in Bills 36 and 37 will apply and intersect with this motion to require specific content, some of which may be confidential, to be included in the regulator's report. Thank you, Mr. Chair.
Thank you. To the motion.
Question.
Question has been called. Mr. O'Reilly, you may close debate on the motion, as your last comment was procedural in nature, and that was my mistake. Mr. O'Reilly, to the motion.
Thanks, Mr. Chair. I believe I heard the Minister say that concerns had been raised by OROGO and the NEB. This gets back to this issue of concurrence by the federal government, and I'd like to raise a point of privilege that this is impinging upon my ability to do my job as an MLA and put forward a motion for consideration of the House. I think this is thwarting my ability to bring forward a motion that is in the public interest, in my view. I turn my mind to some of the comments that were made yesterday by the Minister, as well, where, you know, federal consent was being sought as far back as July 2018, when the bill was before the committee, and now I hear again today that concerns have been raised by the National Energy Board staff, perhaps, and that's going to influence, perhaps, the way that we vote in Committee of the Whole, now, and the work that I try to do as an MLA, so I'd like to raise this as a point of privilege. Thanks, Mr. Chair.
Thank you, Mr. O'Reilly. I will consider the point of privilege, but I will need to take some advice, so we are going to take a brief recess while I consider it.
---SHORT RECESS
I will call the committee back to order. Committee, thank you for your indulgence. This is the first point of privilege that has been raised this Assembly, I believe, so I just want to make sure we are getting it right.
I am going to go back to Mr. O'Reilly so that he can clearly lay out his point again, and then I am going to allow debate, after which time I will come to a ruling. First, I have Mr. Testart.
Point of order, Mr. Chair. I will just quote from our procedural text, Beauchesne's Parliamentary Rules and Forms, 6th edition. A question of privilege. This is 26(2).
A question of privilege, on the other hand, is a question partly of fact and partially of law, the law of contempt of Parliament, and it is a matter for the House to determine. The decision of the House on a question of privilege, like every other matter which the House has to decide, can only be elicited by a question put from the Chair by the Speaker, and resolved either in the affirmative or the negative, and the question is necessarily founded on a motion made by a Member.
Further, part 3, the Speaker can rule on a question of order. The Speaker cannot rule on a question of privilege. If the question of privilege is raised, the Speaker's function is limited to deciding whether the matter is of such a character as to entitle the motion which the Member has raised, the question desires to move over the priority of the orders of the day.
In the case of committees, and I'll quote again from section 107, which is the extension of privilege to committees, it says, "Breaches of privilege in committee may be dealt with only by the House itself on report from the committee. Thus, should a point of privilege be raised, the appropriate course would be to refer it to the Speaker when the Chair of Committee of the Whole reports back to the House, and that the Speaker determine whether or not the point of privilege entitles the Member to raise a motion."
So, as pointed out, the precedent here is that the whole House must decide matters of privilege, as privilege is an inherent component of each individual Member who is elected to this House to exercise, and the House collectively, but only the House collectively, can exercise and determine questions of privilege. Therefore, it would be inappropriate for the Chair of a Committee or even the Speaker to exercise the final determination of privilege, and this matter should be reported to the House proper and the Speaker make a prima facie ruling on whether or not the Member who has raised this point should be allowed to raise it forward. Thank you, Mr. Chair.
According to our rules, section 20(4), the Speaker may allow debate to assist the Speaker to determine whether there is a prima facie case of breach of privilege. I misspoke. I am allowing debate to determine whether there is a prima facie breach of privilege and not to rule on the breach of privilege.
Thank you for the education in legislative rules, though, Mr. Testart. Once again, Mr. O'Reilly.
Thanks, Mr. Chair. I brought forward this motion in good faith to attempt to provide some substance for the annual report requirements for the regulator. Committee raised this issue, as well. We have been working with the Minister's staff to try to come to some understanding or whatever on this.
I find out in the House from the Minister that the Minister and his staff have been talking to the National Energy Board and the Office of the Regulator of Oil and Gas Operations about whether this is acceptable to these outside organizations, institutions, and from what the Minister said there are concerns that have been raised that have the implication of influencing how some Members may vote on this.
We are here to do a job in the public interest to make the best possible laws. Having an outside body influencing what we are doing here I just don't think is an appropriate way for us to create new legislation.
Look, I recognize everybody is rushed, and in an ideal world there might have been an opportunity to reach some sort of accommodation on this understanding, but to receive the information in Committee of the Whole while the motion is before us is not helpful, and I think has the effect of chilling the kind of decision that we can and should be making freely as Members of this House to bring forward the best possible laws for our people. Thank you, Mr. Chair.
Thank you. Further from committee? Mr. Testart.
Thank you, Mr. Chair. I think the point that the Member is raising is fundamentally around the role of Members who are participating in committees such as this one to determine the merits of legislation in a detailed clause-by-clause review and proposed amendments, which is an inherent privilege of Members and an inherent role of the House in exercising its own independence, so the House is allowed to pursue its duties that are important for the passage of laws. To have outside interference either in the form of a consideration that has been raised by a third party that is, in fact, influencing the decision making of a Minister to concur with an amendment raised by committee, which is allowed by our rules but must be carefully balanced with, also, the merits of that. There is a difference between, I think the advice being given to a Minister to reject an amendment that is not in proper form, which is not keeping with the rules of amendment or has a serious public policy concern that the amendment could jeopardize the sound functioning of the law.
In this case, I don't think the justification and what the Member is relying on is something quite different. It is merely that these discussions are taking place at a level outside of this process, and as a result we are unable to make changes or modifications to the bill through the amending process. I think that directly impinges upon, as the Member has said, his rights as a Member to exercise bringing forward amendments and changes in good faith within the realm of our rules and the realm of our privilege.
It just seems to me like these kind of determinations of outside actors, especially in keeping with the spirit of our consensus traditions, those should be freely shared with committee and made explicitly clear, and not just be told the rationale is we cannot change this because we have been told by someone we're not going to do it.
I think that does have serious consequences on the future of legislation that is brought forward. The role of committees is not merely to rubber-stamp legislation. It is to sincerely and solemnly review these things, and that is an inherent privilege. We jeopardize the ability of the House to freely and informally look at these things if those outside contingencies, especially when they are governments, are allowed to be the primary consideration in whether or not the Minister applies his concurrence on amendments, or whether or not the House does, in fact, vote something down for that justification.
I do support the point of privilege. I hope you will consider the merits of the point that has been raised. Thank you.
Thank you. Further from committee? Minister Schumann.
Thank you, Mr. Chair. Let's make something very clear here. We didn't just go off and do this on our own. We talked to the law clerk about this issue before we went out and did this, and we got consent from the law clerk that we would be able to share this information. Thank you, Mr. Chair.
Thank you, Minister. Anything further? Seeing nothing further, I am going to once again call a brief recess while I consider the debate. Thank you, committee.
---SHORT RECESS
Thank you, committee. I will now call Committee of the Whole to order. The Member for Frame Lake has raised a point of privilege. It is my role to determine whether this raises issues of privilege.
At the heart of the Member's point of privilege is that bodies outside this House may be influencing the Minister and Cabinet's consideration of his motion to amend a clause of Bill 37, and that this interferes with his privilege and prevents him from making changes to the bill.
First, the Member's point of privilege is premature. The Member moved a motion, and the question on that motion has not been called and no vote taken. The Member supposes that, as the Minister does not support the motion, his efforts to amend the bill will not succeed.
The Member's concerns do not raise issues of privilege. The Member remains free to bring forward an amendment to the bill and encourage Members to support it. How Members choose to vote on the motion and what consultations or discussions they have had in reaching their decision is not relevant to the Member's ability to bring and encourage adoption of the motion.
I find that the Member has not raised an issue of privilege that should be referred to the House. Thank you, committee. To the motion.
Question.
Question has been called. All those in favour? All those opposed?
---Defeated
To clause 6. Does committee agree?
---Clauses 6 through 8 inclusive approved
Clause 9. Mr. O'Reilly.
Thanks, Mr. Chair. This clause is about making sure that proof of financial responsibility remains in force during a suspension or abandonment of oil and gas facilities.
I want to thank the Minister for providing a letter to me yesterday. I tabled this earlier in the House. It provides some detail about how this is actually done in practice by OROGO. What this does is require that there be a one-year period after successful abandonment or decommissioning of a facility or an activity, I guess, that the financial responsibility has to stay in place for that long.
I would like to ask the Minister: how was the period of one year determined? Thanks, Mr. Chair.
Thank you. Minister.
Thank you, Mr. Chair. ITI worked closely with OROGO and NEB to help ensure that the regulator holds proof of financial responsibility if there is a risk of spills or debris from work or an activity. Clause 9 extends the proof of financial responsibility requirement by requiring the holder of an authorization to ensure that the proof of financial responsibility remains in force for the duration of the work or the activity and for the period of one year after the regulator notifies the holder that all work that had been authorized has been successfully abandoned or decommissioned in accordance with the Oil and Gas Operations Act and its regulations. The one-year period following successful abandonment or decommissioning is similar to subsection 27(1.2) of the Canadian Oil and Gas Operations Act. Thank you, Mr. Chair.
Thank you. Mr. O'Reilly.
Thanks, Mr. Chair. Well, what I actually asked for was some rationale as to why the one-year period. I understand that that is the case in the federal legislation. It's what we inherited. So what kind of process did the department go through in examining whether this one-year period was appropriate or not? Thanks, Mr. Chair. You know, all I want to know is why one year was picked. Thank you, Mr. Chair.
