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Critics question legality of new resource super ministry

It remains to be seen whether last week's restructuring of the British Columbia ministries responsible for natural resources in the province is legal.

That's the assessment of New Democratic Party critic for the Attorney General, Leonard Krog.

“This whole rearrangement seems to have been cobbled together,” said Krog in a Nov. 1 interview. “Whether or not it fits a solid legal framework is a big question.”

A Green Party of B.C. news release raised similar concerns. “The premier is using an Order in Council to by-pass the legitimate role of the legislature,” it quoted leader Jane Sterk saying. “By stealth and through executive decree, the premier has fundamentally revised the Ministry of Forests and Range Act, the Ministry of Energy and Mines Act, and the Ministry of the Environment Act.”

West Coast Environmental Law staff counsel Andrew Gage said it's a good question whether the Constitution Act allows the cabinet to make such far ranging changes, reassigning parts of acts that create and define ministries, without involving the legislature.

“There is no doubt that doing the restructuring in this way is going to create a confusing situation where people can’t rely on what the legislation says, but need to read the legislation alongside the OIC,” said Gage. “It would have been preferable to make some of these changes through legislation.”

The change creates some confusion for consultation with first nations, said Christopher Devlin, a lawyer whose firm Devlin Gailus Barristers and Solicitors works on title issues. An issue arising in several cases recently involves questions about who has the mandate and power to consult with first nations. Creating a division between the new Natural Resource Operations ministry and the previously existing ministries may add to that confusion, he said.

NRO minister Steve Thomson said the changes build on a long term government push to integrate and streamline land use decisions. “This is an evolving process and we're not fully there yet,” he said at a briefing for reporters this morning.

His new ministry will deal with applicants while other ministries—forests, mines and lands, energy, agriculture—retain the mandate to set policy, he said. Environment will have monitoring and enforcement roles, and aboriginal relations will continue its work, he said.

Andrew MacLeod is The Tyee’s Legislative Bureau Chief in Victoria. Reach him here.

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