TRANSCRIPT OF THE FINAL DAY OF HEARING ON LNG!!!!

This is the final transcript on the LNG debate and I wish to thank the staff at the Hansard office for such quick action so the public can know what was said! Merci!!!





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025 11:45
Debate on Bill 70
Mr. A. LeBlanc: Well, the other day I was closing at 5:55 p.m., and the minister had the last say.
I, being an apprentice, have found out since then that I had the last say, because I had the floor. That
is neither here nor there, but it did not give me the opportunity to thank the minister and her staff.
I have one statement, and I am going to be very brief.
This morning I was listening to the Minister of Transportation, and his wisdom. I can agree with him
when he says that we have no control over nature. I agree with that.
If the Minister of the Environment can recall, basically I was talking a lot about the Bay of Fundy
the other day. When we talk about control, we have no control over the winds. We do not have any
control over the tides. Oh, yes, we do have a little control over the tides, but nature controls them.
Of the winds in the Bay of Fundy, it is my understanding that the southwest wind is the most
predominant wind that can create a lot of problems in the Bay of Fundy. The minister replied very
well to that. She is drawing up some sort of a manual that is going to control these avenues in the
Bay of Fundy.
I have to stand here today, when we talk about the city of Saint John, when we talk about the
province of New Brunswick and the principle of this bill, and with my other colleagues disagree on
the extent of benefit Saint John is going to get out of this.
The fear that I have to live with, and the fear that the people in Saint John have to live with, is the
Bay of Fundy and how much control that will have over the lives of the people in the city of Saint
John, and maybe further.
When I stand here, I stand here being very honest about this whole situation. We have to look at
what it is all about.
026 11:50
It is about people and their assurance of living quite contentedly in that area where we live. I have
lived there basically pretty well all my life, as have the people there. We have to look at the people
that contribute to the city of Saint John for most of their lives as taxpayers, as grownups,
volunteering and giving back to the city.
What I am saying to the government here this morning is that this thing is not totally finished to the
extent that we can build a terminal. We are in a position, as people who represent people, where we
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should be very satisfied that everything has been put in place before we break the soil. That is not
happening.
My fear, and I believe that the minister would have the same fear, is of what actually is taking place
here. Are we in a position to honestly say that we are putting the people of Saint John and the
surrounding areas at peace and that this thing is actually going to be safe. That, for me, is something
that I could relax about and live with. If the minister, or anybody on the government side, could
reassure me and the people of Saint John that for ever and a day, this creation that is going to create
so much money for the Irvings and for the province, there will be no fear of anybody being affected
with ill health, death or anything else, then I would stand here very proudly alongside the minister
and her government and say yes, and I would say that it is good. However, they cannot reassure me
of that, so none of this is finished.
I feel quite comfortable today saying that I could not support the bill that is being presented by the
government on behalf of the city of Saint John. I am going to close, because I do not need an answer
to that. I do not think you can answer that. I have that much respect for you. I just want to reiterate
how I feel.
I want to thank the minister and her staff and I note her endurance over the last few days and months
that she has sort of tried, in her own wisdom, to satisfy this side of the table. Thank you very much.
Hon. Ms. Fowlie: I know the member opposite was not expecting a response to this. However, in
regard to this type of a liquefied natural gas facility, each year there are 120-million metric tonnes
of this transported annually. This has been done for 40 years on the ocean. That is 38 000 tanker
voyages without incident in liquefied natural gas, transportation.
Ms. Weir: I think that all of us were to be commended yesterday for the endurance that we
demonstrated, including the minister’s staff, to go through the excruciating conditions on the floor
of the Chamber. We agree that the efforts that were expended in order to assist in debate of the bill
were appreciated, and we regret the circumstances that the officials had to endure. I guess it is one
thing for MLAs to have to put up with it, but that is our job.
I want to commend my colleague from Saint John-Lancaster for the effort that he has devoted to this
issue, and for his refreshing candour and passion in speaking on this bill.
027 11:55
I would like to continue on a few issues with respect to Bill 70.
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I have to tell the minister that she almost had good news this morning. I thought I was getting
laryngitis, but thankfully, some of that good Java Moose coffee reinvigorated me when I was giving
my tearful farewell to Paul Castle at CBC.
I would like to go back to—not to repeat, but to clarify—some of the debate that we had yesterday.
The minister, on several occasions . . . Please, my good friend from Saint John-Champlain, I did
not mean to ignore the efforts that you have put into fighting this legislation, either. As well, your
passion and candour are very much appreciated, although he did not manage to demonstrate the
same depth of passion or candour as when he had a discussion with the president of Service New
Brunswick.
I would like to ask the minister, Can the department officials, through the minister, provide an
example of any other municipality that has been permitted to give a tax concession to any company?
Hon. Ms. Fowlie: As I have stated on the floor of this Legislature, this is a unique piece of
legislation. There have been incidents, where, in order to develop industrial parks, municipalities
have put infrastructure in place. We do not have any specific examples of a municipality
requesting . . . Well, the request came forward from the municipality to be permitted to give the
municipal tax break. There may have been requests, but staff do not have that information.
What we have said all along is that this is a unique piece of legislation. What we are looking at here
is worldwide competition for this facility, it is not competition within New Brunswick. It is, as I
said, a very unique piece of legislation.
Ms. Weir: There will be no debate on this side of the House that it is a unique piece of legislation.
The whole debate is that it is so unique that it is reprehensible. That is what the debate is about.
I would like to ask the minister a question, with the benefit of her officials, in order to canvass this
a little further.
028 12:00
Of course, I think it is fair to say that the position that certainly I am taking in terms of this
legislation, and, I think, as are a number of my colleagues in the Official Opposition, is that this
clearly violates both the spirit and principle of Equal Opportunity. The city had no legislative
authority to enter into or grant the tax concession, which is, of course, why it came before the
government.
I want to get the minister’s views on a similar question—not the same, admittedly—and that was
the court decision on Sobeys Leased Properties in the Town of Newcastle. That decision, which was
a 1997 decision of the Court of Queens Bench, Trial Division, in the judicial district of the
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Miramichi with Justice Reardon, dealt with an application for judicial review of a decision to
provide incentives for a new development.
The respondent town, Miramichi, had passed a resolution offering property tax incentives to a retail
company to build a grocery store. The applicant Sobeys operated a competing chain, and naturally,
argued that the incentives unfairly discriminated between commercial property owners, and created
competitive disadvantages. Sobeys argued that the town did not have jurisdiction to pass such a
resolution. Sobeys was previously unsuccessful in seeking similar concessions from the town.
In this case, the application was granted, the resolution was quashed, the court ruled that the town
did not have the jurisdiction to grant the competing company a refund of municipal tax to encourage
development. The town was not authorized to provide this service, and the resolution was
discriminatory, giving preference to one company over another.
Clearly, there are distinctions in the case at hand that would apply. I am interested to hear the
minister’s response, because in the course of this decision, the court canvassed a number of issues
around the legal authority of the municipality, and the capacity of a municipality within the
framework and the context of property tax legislation. It canvassed a number of issues. I will just
identify a few, and then I would like to hear the comments of the minister, on the record, in response
to them.
In the first issue that was canvassed, the court discussed having the statutory power to do an act or
service or work that involves the spending of money, and if the act, service or work is authorized,
the expenditure for money for such purpose is legal. It cites the Law of Canadian Municipal
Corporations, second edition, by Rogers. At pages 589 and 590 of the text it states:
Statutory power, expressed or implied, must exist for every item of expenditure by local authorities.
In all cases in which a municipality is authorized by statute to execute a work of a specified kind,
to acquire real and personal property, to employ officers, servants, or workmen, or in general to do
anything which necessarily or reasonably involves the expenditure of money, it has the authority to
procure and expend money for such purposes. Such authority is necessarily incidental to the
exercise of the expressed power granted to the municipality. On the other hand, if the statutory
authority for doing what the municipality proposes to do or has done is lacking, the expenditure is
illegal. Legislatures have attempted to give specific grants of authority to councils to spend money
for particular objects, therefore it is incumbent upon them to justify disbursement of corporate funds
by pointing the specific legislative power. Otherwise, the expenditure is ultra vires. Where such
authority is absent, municipalities have often fallen back on the omnibus clause empowering them
to pass bylaws for the general welfare of the inhabitants in order to support a payment.
I am just going to canvas a couple of other points in this decision to get the minister’s comments.
Under ultra vires expenditures, it states:
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029 12:05
Since a local authority is a statutory creature, it must be able to justify the payment of its funds
under legislative authority, otherwise the payment is ultra vires the corporation. The money must
be paid out for a purpose sanctioned by general or special legislation. It has been said that an
expenditure must be for municipal purposes, and in some statutes this term is employed. Section 162
of the Ontario statute refers to the sums required for the purposes of the municipality. Quebec
allows the general funds of the municipality to be employed for any person within the jurisdiction
of council. The distinction between municipal and non-municipal purposes, however, is no longer
important, inasmuch as the activities of local government bodies have been extended into fields
which are primarily governmental. An expenditure may be both illegal in an ultra vires if it has not
been authorized in the manner prescribed by statute, and if it is for a purpose and object in respect
of which no grant of power has been made by the Legislature.
With respect to grants to organizations and individuals, and local authorities, this is at pages 595 and
596 of the text.
Local authorities have no power in the absence of an expressed grant to make gifts or dispose of the
property of the corporation gratuitously. Statutes generally sanction gratuitous grants of money to
certain organizations and individuals which are called grants in aid. Granting aid means granting
anything helpful as a means or material source of help, and also that which aids or yields
assistance. It seems that the objects of the organization receiving aid must be directed toward the
interest of the citizens generally, and not the financial benefit of its members.
Unless express authority is given, payments of this nature would be ultra vires and could not be
supported under the general welfare clause, although an Alberta court upheld such a grant under
the residual clause of the former Edmonton charter.
I think that fairly captures it. What I am looking for . . . I know this is a situation where they were
competing companies, but the municipality had made the decision to make a grant, so I would like
the minister to clearly distinguish in response to this decision on the issue specifically of an
expenditure being illegal and ultra vires if it has not been authorized in the manner prescribed by
statute. I would agree, and the minister has as well, that the municipality has, without the Act we
are dealing with today, no authority to make this decision.
Really, what I am curious about, is if it is for a purpose and object in respect of which no grant of
power has been made by the Legislature. Clearly, what the city is doing by way of granting this tax
concession is entering into the . . . actually, into the province of the Minister of Business New
Brunswick in granting a form of development funding, financial assistance, to this corporation.
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I would like to hear the minister’s comments, dealing specifically with the object and purpose of the
decision by the city of Saint John and speaking to the capacity of the municipality, in fact, to intrude
in an area of provincial jurisdiction which is economic development and financial assistance through
economic development.
030 12:10
Ms. Weir: The name of the decision for the assistance of Hansard is Sobeys Leased Properties
Limited and the Town of Newcastle, 1997, NBJ #90, New Brunswick Court of Queens Bench, Trial
Division, Judicial District of Miramichi, Riordan J., heard March 28, 1995, judgement filed
February 28, 1997.
It took him a long time to write that.
Hon. Ms. Fowlie: There is a difference between the one in the Miramichi—it was Newcastle at the
time—that you are referring to, and this in the city of Saint John. In the previous case, the concil
made a resolution that they were going to do this, and a competitor challenged it and won.
What the city of Saint John has done is make a resolution that they wanted to do this, and that they
wanted legislation enacted to enable it to do it. We agree. That is the reason why we have this standalone
piece of legislation, here and now. It did not have the legislative authority and it petitioned the
province for legislative authority to do that.
This Act that we have put in place does not give the city of Saint John the power to go and start
giving tax breaks. This is one specific item, an LNG facility.
With respect to the case in the Miramichi, there were competitors, as we said. What we have said
with this bill that we have introduced is that if there were another LNG facility in the province, and
if the municipality were so inclined, that it could offer the same type of tax exemption to that type
of facility. So, there are differences in the two cases that we are talking about.
Ms. Weir: I agree with the minister in terms of the factual situation. What I am really looking for
comment on, is the real object of this Act and of the resolution of the city of Saint John. I would put
it to the minister that the real object of the city of Saint John’s resolution and this piece of legislation
is, in fact, in the nature of economic development. That is the purview of the provincial government,
and not of the municipality, because if we are looking at the extent of the subsidy that is going to
be provided to this corporation, we are talking about a $100-million subsidy over the life of the
agreement.
I would put it to the minister that this is not in the nature of a change in the property tax rate, that
this in fact is an economic development subsidy that is in the jurisdiction or the purview of the
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provincial government—and not a municipality—to make. I would like the minister, if she could,
simply to comment on that.
031 12:15
The object, as we know, the courts will often look at. You may say that the object of legislation is
one thing, but indeed, the object of legislation is something entirely different, so I am putting it to
the minister, that this is in fact an economic development initiative that is properly the responsibility
of the provincial government, and not a local municipality, a creature of the province.
Hon. Ms. Fowlie: Under the Municipalities Act, in the first schedule of services, in the list of things
that a council may involve themselves, there is industrial development and promotion. Then, if you
look at the Municipalities Act, it does indicate how that may done, or how it may not be done. If you
look at section 90.013 and 90.014 of the Municipalities Act, it did say that it cannot be done by
reimbursement of taxes. That is why we have this stand-alone piece of legislation.
Ms. Weir: I would like to have the minister clarify this: Does the Municipalities Act say it cannot
be done through a reimbursement of taxes?
Hon. Ms. Fowlie: A municipality does not have that authority. That is why there were no
amendments made to the Municipalities Act, and that is why we needed the stand-alone piece of
legislation.
Ms. Weir: I believe that the minister, yesterday in debate, said that there was no prohibition on the
granting of tax concessions in the Municipalities Act. Does not this section that the minister just
referred to not capture what was in the Byrne Commission? That was a prohibition on municipalities
using property taxes and concessions as was clearly identified in the commission report. Indeed,
there is a bar in the Municipalities Act on municipalities doing this.
Hon. Ms. Fowlie: What I was referring to yesterday, is that there can be differential municipal taxes
within a municipality. That is 87(4) of the Municipalities Act. That happens throughout New
Brunswick. You can have a municipality that can have different taxation levels in different parts of
the municipality, dependent upon the services that are provided.
When we looked at the LNG facility in Saint John, it did not fall under that section of the Act either,
in that it was that the services that the municipality would be providing would be similar to services
that other business or individuals in that area would be receiving. So, they were not allowed to do
the differential tax rate based on that. That was one area that we looked at. Again, we said that the
municipalities were not able to give grants that are directly or indirectly reimbursements of taxes
on a facility.
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So we looked at all these sections, and that is why the decision was made that we would not be
making amendments to the Municipalities Act in order to comply with the request from the city of
Saint John. We felt that we would leave our legislative acts intact, and come forth with a new Act,
basically, to comply with the request from the city of Saint John for the taxation of the LNG facility.
032 12:20
Ms. Weir: Just to clarify an issue yesterday, in terms of our scintillating discussion on the provincial
property tax assessments at Canaport . . . For the benefit of the minister, Canaport went into
operation in 1970. I believe the response yesterday—it was kind of a hot haze here in the
afternoon—from the minister was that the facility itself was exempt from provincial property taxes.
Hon. Ms. Fowlie: What we were referring to yesterday was that in 1981, there was an amendment
made to the Assessment Act. It says:
Notwithstanding subsection 3(1), and notwithstanding subsection 5(1) of the Real Property Tax Act,
provincial taxes or rates shall not be calculated or levied on crude oil storage tanks connected with
an oil refinery or on pipe lines connecting such tanks to the refinery when such crude oil storage
tanks or pipe lines are used solely for supplying crude oil to the oil refinery for the sole purpose of
manufacturing or producing petroleum products.
So we know that, in 1981, there were no provincial taxes, from that point on, paid on the Canaport
facility. I guess what I was saying yesterday is that staff here do not have information on what took
place on that site from the time of construction to 1981.
Ms. Weir: Again, I am just trying to put together information. I know it goes between Service New
Brunswick and your department, and I did have a fairly good discussion with the President of
Service New Brunswick when we were here in Crown corporations committee. I recalled that, and
I went back. He had actually sent me an e-mail following that to try to set his records straight. In that
e-mail, he said: In terms of the LNG facility, additionally, it is integrated with Canaport legal parcels
of land. While some of the Canaport parcels currently do pay provincial and municipal property
taxes, this is due to the fact they are not being used for the purpose of loading or unloading seagoing
cargo. The remaining parcels, however, are exempt from provincial taxes as part of the cargo port.
Therefore, clearly, there are parts of that property that are paying provincial and municipal taxes.
Does the minister have any indication of the tax bills that would be attached to those parcels?
Hon. Ms. Fowlie: That is not information that we have with us, but the staff have committed to get
it to you next week, if that would be okay.
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Ms. Weir: Again, I would just like to confirm the discussion that we had yesterday around the
designation of this LNG facility as a major cargo port. That designation occurred under subsection
4(8) of Act to Amend the Assessment Act, assented to February 28, 1977. The Act was proclaimed
on January 1, 1997. Is that the section that the department is using?
033 12:25
Hon. Ms. Fowlie: Could you reread what you were saying?
Ms. Weir: I know both Mr. Dubé and . . . I believe yesterday he referred to section 4(8) of the Act
to Amend the Assessment Act that was proclaimed January 1, 1997. Section 4(8) specifically applies
to major cargo ports. I am just asking the minister to confirm that this is indeed the section.
Hon. Ms. Fowlie: Yes, that is the section referred to. What was confusing us is that you also had
a date of 1977 in there. That is the section being referred to.
Ms. Weir: I do want to return to this, and I am sure my colleague from Saint John Lancaster will
be equally intrigued. This has been the source of my confusion, and I am sure with your very able
officials that you will be able to set this straight. I am certainly no expert in reading legislative
drafting, but I would like you to help me out of my confusion that I am clearly mired in.
I read this section and I cannot figure out how in the name of whomever this LNG facility falls
under this section. I will read it in its entirety. I know that courts get really shirty when you only cite
pieces of legislation. This is how section 4(8) reads:
Notwithstanding subsection 3(1), and notwithstanding subsection 5(1) of the Real Property Tax Act,
provincial taxes or rates shall not be calculated or levied on any land situated at major cargo ports
as prescribed by regulation, including wharfage, paving, fencing, water lots and buildings on such
land, if the land is used in the long-shore industry within an operating infrastructure for the purpose
of loading or discharging seagoing commercial cargo, but not including any land and buildings on
such land used for the purposes of processing, manufacturing or power generation.
I know my good friend from Grand Bay-Westfield—who has a long experience with labour
legislation, the Supreme Court of Canada, and all the rest of it—is no doubt following this debate.
I have to ask the minister and her officials, How in the name of goodness can you stand here and tell
us that the LNG terminal is captured by this section when it says clearly that the land is used in the
long-shore industry within an operating infrastructure for the purpose of loading or discharging
seagoing commercial cargo.
This is exactly the point that the Supreme Court of Canada has ruled on. There is no way the LNG
facility is captured by this section. I am open. You give me the argument that will in any way
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convince me that this falls under this section. Then, we will return to the decisions that the Supreme
Court of Canada has made. I am asking you to help me, because as you know, from time to time we
do have to read legislation in this legislature. I read that section, and I have read the Supreme Court
of Canada decisions, whether it is Mobil Oil or whether it is the 2002 decision, the General Longshore
Workers, Checkers, and Shipliners in the Port of Saint John, Irving Shipbuilding, and Port of
Saint John Employers’ Association went to the Supreme Court of Canada. Explain to me please.
034-036 12:30
Mr. Chairman: Maybe we could get the response after lunch. It is now 12:30 p.m.
Hon. Ms. Fowlie: We will do this, and she can come up with more over lunch.
Mr. Chairman: Okay.
Hon. Ms. Fowlie: The LNG is a seagoing commercial product. The general definition of
longshoring is a much broader definition than the member opposite is referring to under the labour
laws. This Canaport facility is included in the definition of major cargo ports for the port of Saint
John.
We are talking about two things. She is talking about labour laws, we are talking about a broader
definition of longshoring that is generally accepted.
Ms. Weir: I want your officials to get ready, because there are Supreme Court of Canada decisions
talking about LNG and the oil and gas industry. We are going to talk about those. If you are going
to take the position that somehow LNG is commercial seagoing cargo, you go to the Supreme Court
of Canada and watch how quickly you get booted out.
(The committee recessed at 12:30 p.m.
The committee resumed at 1:34 p.m.)
037 13:30
Mr. Chairman: I call the committee to order. We are presently on Bill 70.
Ms. Weir: I would like to ask the minister if her officials can provide the legal authority that
indicates that LNG is part of commercial cargo?
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038 13:35
Hon. Ms. Fowlie: In regard to LNG, it is defined. It went through the EIA process as seagoing
commercial cargo. I guess we can say seagoing is given, because it is coming in by ship tanker. The
EIA speaks to the cargo, and LNG as cargo in the tanker. It is a commercial commodity that is
bought and sold. That is why we define the LNG as seagoing commercial cargo.
Ms. Weir: Could I ask the minister to confirm that the EIA is in fact conducted by the proponent,
which is Irving Oil. Is that not the case? I asked you for a court decision that included, or defined,
LNG as part of loading or discharging seagoing commercial cargo. I know what Irving Oil wants
to say. I am asking you to give me a judicial authority, because the pile is on the other side that says
that LNG is part of, or is included in, the judicial definitions of seagoing commercial cargo. I could
care less what Irving Oil says.
Hon. Ms. Fowlie: There was never a legal opinion requested on the definition of LNG. As for the
EIA process itself that you said was done by the proponent, keep in mind that there was a technical
review committee put together to come up with the terms and conditions under which this EIA
process would be done, and, as I have said before in this House, with a very eclectic group of
individuals on it, none of whom were the Irvings.
Ms. Weir: I am baffled that the position of the minister, the department, and the officials is that the
LNG transportation, unloading, and the facility itself, is captured by the language: the purpose of
loading or discharging seagoing commercial cargo.
Let me give you the Mobil Oil and Gas case. Let me refer you to Halifax Offshore Terminal
Services Limited. I am asking for the minister, her officials, to give me one judicial decision that
would recognize LNG in the definitions that the Supreme Court of Canada has brought down, that
constitute part of . . . as the common law system, along with our legislation . . .
Judicial precedent at the Supreme Court of Canada—I know that you have lawyers over
there—imposes the regulatory scheme on how we approach things.
I am glad that my colleague is back from Grand Lake, because he knows this very well.
I have said Mobil Oil and Gas case, and Halifax Offshore Terminal Services Limited. You give me
one case from the Supreme Court of Canada that says LNG is part of seagoing commercial cargo.
I have cases on the other side. You say it is, you give me one case.
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039 13:40
Hon. Ms. Fowlie: The cases that the member opposite is referring to are all within the scope of
labour law. We know of no case in which the definitions were used in property tax assessments, or
challenged in regard to property tax assessments.
The definition that we have of a longshoreman, and maybe we should have that changed to
“longshoreperson”, I do not know, is: One who is employed at the seaport to work at the loading and
unloading of ships. The LNG facility that will be constructed in Saint John is within the boundaries
of the Port of Saint John. As I said, what she is looking at are definitions that are being discussed
in a labour law context. We are not aware of any longshoring industry, again, as I said, being
discussed in regard to property taxation or assessment.
Ms. Weir: Do you have lawyers over there? You do not have any lawyers over there? Oaky, you
know, we are not going to leave this, but we are going to add another element. I would like the
minister, on the basis of the information that the minister has, to report or respond to this question:
Is there one single employee at Canaport or at the LNG project who will be part of the longshoring
industry? This is what your statute says. It does say that if the land is used in the longshore industry
within an operating infrastructure for the purpose of loading or discharging seagoing commercial
cargo.
Right now, is there one longshoreperson at Canaport?
040 13:45
Hon. Ms. Fowlie: For the purpose of our Act, the individuals who will be working on this site in
the loading and offloading of vessels, will be doing longshoring, will be part of the longshoring
industry. Now, what the member opposite is referring to is a general definition, or a definition under
the labour laws. That is a federal responsibility under labour, not for the definition of this Act.
Whether these individuals who are employed there, doing these things, are part of a union or a
nonunion, is moot to this Act.
Ms. Weir: Can I ask the minister if she would bring a lawyer in, please?
Hon. Ms. Fowlie: The staff here are able to answer questions in regard to this bill. We do not have
a lawyer on standby who is coming in.
Ms. Weir: I would put it to the minister that the answers that you are giving are misleading to this
House. Your staff are not capable of answering the questions. I am holding a decision of the
Supreme Court of Canada from 2002 that says very clearly that the loading and unloading of
petroleum product bulk vessels are not part of the longshoring industry.
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If the minister is going to rely on language that the Supreme Court of Canada has ruled on . . .
Quite frankly, I do not want any lectures about what labour law is or is not. Certainly, my colleague
from Grand Lake is far more experienced than I, but I specialized in labour law when I was at law
school, and I know what the Supreme Court of Canada says and what it means, whether it is
provincial or federal legislation. So stop the BS and let’s get some answers.
If you do not have a lawyer over there, get one. I have Supreme Court of Canada decisions here, and
you have none. You are relying on language that is inapplicable. You have cut a sweetheart deal
with the Irvings, and this is an absolute travesty. So, go get someone who can answer my questions.
041 13:50
Hon. Ms. Fowlie: I will still say that the member opposite is trying to argue labour law, as she said.
We are talking property tax assessment. There was a situation in the case of Halifax Longshoremen's
Assn., Local 269 v. Offshore Logistics Inc. (2000), FCJ No. 1115. The federal court noted that the
board’s definition as to whether work is longshoring is largely based on the facts and circumstances
of a given case.
We are saying that in this situation, for the purpose of property tax assessment, we are using a
broader definition similar to what is used at the Canaport facility. I know the member opposite is
very concerned that there may not be her union friends involved in the Canaport facility, but the
point is that is what is happening. We are treating this facility no different from what is directly
happening on the Canaport site.
Ms. Weir: Then I would ask the minister to show me where the statutory definition is that she is
using. If the Act is silent, then you fall to Supreme Court of Canada decisions, amongst others, to
interpret. Where is your definition? Where is the statutory definition of the longshoring industry in
your Act?
042 13:55
Hon. Ms. Fowlie: Again, I will reiterate that for the purposes of this Act, we are relying on a
common law definition, a basic dictionary definition. We do not feel that labour cases tax
precedence over property tax assessment cases. If the member opposite—and I know she has
requested this at a previous time—has different cases that she wants addressed, then we will
definitely have legal staff look at them, but I do not believe those cases have been provided to the
staff by the member opposite.
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Ms. Weir: With respect, it is not my responsibility to do the legal research for your department or
this government when you cut a back-room deal, and then desperately, desperately, look around for
some way to substantiate it.
I will try this, since the minister just said that she is relying on the common law definition. Clearly
you do not have a statutory definition. If it is a common law definition, it has to be a court decision.
Give me the court decision.
Hon. Ms. Fowlie: If I said common law, I apologize. I am not a lawyer. I said a common definition,
one from the dictionary.
Ms. Weir: I know it is uncomfortable that we are actually dealing with legislation, and I am being
really picky. The minister cannot provide me a statutory definition, and she cannot provide me a
common law definition, because that, of course, would be a court case to substantiate her position,
while I have Supreme Court of Canada definitions.
I will ask the minister a third time, Give me your dictionary definition.
Hon. Ms. Fowlie: Webster’s Third New International Dictionary defines longshoreman as one who
is employed at a seaport to work at the loading and unloading of ships. The New Shorter Oxford
English Dictionary, 1970, defines a longshoreman as a man employed in loading and unloading
ships.
Ms. Weir: Well, I am really impressed. I am really impressed. Why do we even bother dealing with
statutes here when we will go to Webster’s dictionary or we will go to Merriam or whatever for a
definition? This is an absolute farce, an absolute farce.
You are relying on statutory language, you have no statutory definition to back up your position.
You do not have one single court case, here in New Brunswick, and we certainly know that you have
no court cases coming from the Supreme Court of Canada to support what you are doing. You are
using a provision that was specifically brought in as an amendment to deal with the transfer of
federal lands. Are you insisting that by reaching out for some dictionary definition that that can
supercede decisions of the Supreme Court of Canada on what this language means? I want to get
this on the record.
043 14:00
One of the useful things we now have in Canada is that the courts will actually take debate in the
Legislature as part of the evidence that can be presented in court. So, I want you to stand up and
confirm that you have no statutory definition of longshoring or commercial cargo to rely on, you
have no provincial court decision, and there are a ream of Supreme Court decisions on the other
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side, and you are relying on your dictionary definition to say what these words mean. Is that a fair
capturing of your position?
Hon. Ms. Fowlie: What I am saying is that if the member opposite has Supreme Court decisions that
she wishes to share, then we will have legal staff review them.
Ms. Weir: There is 2002, Supreme Court of Canada, and more will be on the way. Can I suggest
we take a break in order to allow the officials to review those decisions? While you are at it, check
out Eastern Stevedoring and Mobil Gas.
If they do not have a lawyer over there, can I ask what the utility is of having them review the legal
consequences of that decision?
Hon. Ms. Fowlie: I guess I will reiterate: What the member opposite is quoting from is a labour
case. That is labour law, and as I have said, for the purpose of property tax assessment, we know of
no case in which this was looked at. So, we were quite correct in that the member opposite is
quoting labour law.
Ms. Weir: I would move, in order to expedite this process, that a solicitor on staff with the
Department of Justice, or your solicitor, be brought into the Chamber to respond to this. What the
minister has said is like saying, well the Charter of Rights is human rights law and it does not apply
broadly applicably to the laws of the land.
I am not going to take lectures about the implications of Supreme Court of Canada decisions until
you have a lawyer on the other side. Go get one.
044 14:05
Mr. Chairman: To respond to the member for Saint John Harbour, first, all motions in Committee
of the Whole have to be made in writing. In any such event, a motion probably would be ruled out
of order in Committe of the Whole. It is up to the minister to bring in whichever officials to assist
her in answering any questions. Are there any other questions?
Ms. Weir: I am looking for a clear answer on this. Statutory language has to mean something, and
if the minister is relying on a provision, and there is not statutory definition to define that provision,
and there are Supreme Court of Canada decisions defining this language, the minister cannot simply
then pull out of the air dictionary definitions that supercede language that has been interpreted by
the Supreme Court of Canada.
I do not care if it was a family law decision. When they define what language means, that is very
clear. The minister asked for a Supreme Court decision. I gave her one. It is not my obligation to
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do their research. If they are going to come to this House with specious arguments to sustain their
legislation, then at least they can bring in some of the experts to try to support their position.
That is all I am asking. Her officials clearly are unable to give me an answer, a coherent, cogent
answer to the question I posed. So, I am asking that if they cannot answer these questions, then bring
someone in who can.
Hon. Ms. Fowlie: I know that we had requested from the member opposite a copy of any Supreme
Court decisions that she may have. What she has given us is a Canada Industrial Relations Board
decision. It is not a Supreme Court decision.
Ms. Weir: . . . the Supreme Court of Canada. This is exactly what I am talking about. If the minister
is ill-informed, if her staff are ill-informed, go get the Eastern Stevedoring case from the Supreme
Court. Go get Mobil Gas. I can name the cases. You name me one that supports your position. Name
me one.
045 14:10
Hon. Ms. Fowlie: With reference to the Canada Industrial Relations Board paperwork that the
member opposite sent over, I do have an understanding that the Federal Court of Appeal noted that
the term longshoring is not defined in the Canada Labour Code, nor has the jurisprudence provided
a precise definition. So, that would be . . .
Ms. Weir: That is why there are other cases such as Eastern Stevedoring and Mobil Gas and others.
It is a little frustrating to have this argument, to say the least. I am sure the minister is equally
frustrated, because the minister is now before the House with an indefensible position.
As offensive as the $100-million property tax subsidy is that the city of Saint John will be giving
to the LNG project, for the Province of New Brunswick to rely, to try to mislead . . . For the
government to try to mislead members of this House and suggest that this section, this amendment,
is in any way supporting what they are trying to do, is simply an insult to members of the
Legislature.
My challenge to the minister is to show me the language that supports your position, because section
4(8) certainly does not do that. I know my colleague, as well, knows very clearly what we are
talking about: Petroleum products are not classed as commercial cargo. If you want to classify them
that way, it should say so in your statute and it does not.
You are stuck.
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Hon. Ms. Fowlie: I think that there is some movement away from the context of the bill the member
keeps referring to. What she is citing is reasons why there should not be . . . I guess, there should
be provincial taxes applied to the facility. The bill we have in front of us here has nothing to do with
provincial taxes. That is not something that is needed in regard to the bill here itself. This is
municipal taxes for offloading and storage. If she wants to go back and argue the property tax
assessment at some other point, then I am quite willing to allow the representatives from Service
New Brunswick to come in and do it.
Ms. Weir: This is making the retreat from Moscow look like a Sunday School picnic. After taking
every attempt to justify the decision of this government to completely exempt this LNG terminal
from provincial property taxes, then being completely unable to actually provide any substance or
evidence for that decision, we now are taking the position that we should not be talking about this,
even though we have been talking about it for the last two days.
There is no question that . . . The only way you can categorize this deal, is to simply say, from one
end to the other it just stinks. You know, at a time when this government does not have the political
will to address the problem of addictions that gambling addicts have, because of course we do not
want to lose the revenue, on the other hand it is clear that when it comes to giving your special
friends, your special friends special breaks . . . Oh, we do not need to worry about revenue there.
046 14:15
No, we will just hand it away. On the other hand, Oh, we could not lose any of that VLT revenue.
Oh, no, no. It is too critical to the province, so you impoverish people, you enslave them to those
machines, and then you just look at the LNG project, Irving Oil, Canaport, and say: Oh, you do not
have to contribute to the provincial revenues. That is not necessary at all.
I think that I have made my point. If the minister is unwilling to actually bring a lawyer in, in order
for us to have a sustained discussion on any kind of reasonable terms . . .
I would just love to have one of those Supreme Court judges listening to how cavalier the minister
is about the impact of the work that they do and their decisions on all our lives. It does not create
a great deal of faith, shall we say.
I want to deal with another section of the bill—and I know the minister will be able to deal with
this—that clearly is offensive as well. That is the regulatory power that is given in section 7 to
Cabinet, to the Lieutenant-Governor in Council. This section says that the Lieutenant-Governor
Council in section 7(1)(a) may make regulations describing the LNG terminal for the purposes of
the Act.
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While they are doing that, they might want to make regulations defining the longshoring industry,
and commercial seagoing cargo while they are at it, since they do not have it in this legislation.
Then, in section 7(1)(b) it states that the regulatory power includes prescribing the year for the
purposes of subsection 2(2). It goes on in section 7(2) to say that a regulation under subsection (1)
may be retroactive in its operation.
I think that there is something fundamentally offensive after all the wheeling and dealing that has
gone on around this big, big tax present, that we would include in that a capacity to have retroactive
regulations, made by Cabinet, that influence or can prescribe the year for the purposes of this
legislation, and describing the terminal.
Simply, I would submit to the members of the Legislature that the retroactive power to make
regulations is not something, generally, that should be accorded, whether it is in legislation, and
legislation, as well, giving retroactivity. A power of retroactivity is something that is done very
sparingly, because there is something inherently offensive about the capacity retroactively to take
action.
Proposed Amendment
Ms. Weir: Consequently, I would move an amendment to this bill to cure this defect. It would
amend section 7, subsection (2), by the deletion of section 7, subsection (2). I would so move and
I do have copies.
047 14:20
(Mr. Chairman, having read the proposed amendment, put the question, and the following debate
ensued.)
Debate on Proposed Amendment
Ms. Weir: It is a very clear amendment. It is simply to remove the capacity of the Lieutenant
Governor’s council to make regulations retroactively. As I have said, I think there is something
inherently offensive about providing power to make regulations retroactively. This is not a measure
that should be supported in the House. For that reason, I am moving this amendment.
Hon. Mr. Fowlie: Speaking briefly on the amendment, I am sure the member opposite . . . I am not
sure if the member opposite has more to say or not. Under the Assessment Act, retroactivity is
relatively common due to the fact that assessments are effective from January 1 of any given year
for that calendar year. If a facility came on line midway through 2007, you could make that
assessment retroactive to January 1 of that year.
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There are different sections of the Assessment Act that do have retroactivity. I could cite 40(1.1), “A
regulation under paragraph (e.41), (e.5), (e.6), (e.7) or (e.8) may be retroactive in its operation.”
There are a number of sections that are retroactive. As I have said, this is not uncommon in the
Assessment Act, due to the fact that the property taxes are payable from January 1 of any given year.
Therefore, I will not be supporting this amendment.
Mr. Chairman: Is there any more discussion on the amendment? If not, we will ask staff to leave
the Chamber.
Proposed Amendment to Bill 70 Defeated
(Mr. Chairman, having read the proposed amendment, put the question, and the amendment to Bill
70 was defeated.)
Debate on Bill 70
Ms. Weir: I would agree, Mr. Chairman, your acute hearing was probably an accurate reflection of
the result of the vote. I certainly will not dispute that.
Could I get a glass of water? I only have about 10 or 12 hours left to go.
(Interjections.)
Ms. Weir: The bill that we have been debating over the last couple of days, the one that the minister
has described as such a complicated piece of legislation. As I have said, in the 14 years I have been
in the Legislature, I have seen a variety of statutes. I am not sure I would describe these two pages
as one of the more complicated pieces of legislation. I guess, maybe, I would make a final plea to
the Minister of Justice, because, clearly, something is wrong in the drafting department if this gets
racked up to being a complicated piece of legislation.
048 14:25
The very essence of it is not complicated at all. The very essence of it is a sweetheart deal, both the
request to this government and certainly the unseemly and obscene haste to respond to the request.
It is very neat and clean.
(Mr. Holder took the chair.)
Despite what the minister has to say, the very hard work and effort of so many in order to move this
province to lay the foundation and the framework through the revolutionary changes in property
taxation that the Byrne commission represented, it is quite disappointing and disturbing to see a
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government that is so willing to turn its back on what was a remarkable achievement that gave
municipalities—gave them—the kind of shelter that they needed from the heavy-handed tactics.
No matter how you categorize it, to have the head of a corporation walk into a municipally elected
council and tell them: You decide this by midnight, or the project gets yanked. How else do you
describe that than heavy-handed, abusive tactics? For that reason alone, you should have turned this
deal down. You had the authority, as minister, to do it, but you had given this project the green light
before that. We know from that letter from the president of Service New Brunswick to Ken Irving.
I am hoping that when this is done with that whenever anybody is meeting with them that they bring
their sunglasses, because you had better stop looking in his eyes.
We know from the date of that letter that this deal was put and done before the request came from
council. That is very clear. In addition to that, to see this government in the second part of the deal
exempt this project from provincial property taxes is simply shameful. It is simply shameful.
Mr. Chairman, I am sure your hearing is as acute as the previous Chair’s. I know very well. My
opposition to this bill has been clear from the beginning, as my colleagues have. It is simply a
regrettable effort by this government to start to dismantle what so many have worked to accomplish
to move this province out of the days when you can this kind of heavy-handed corporate blackmail
applied to elected officials. I certainly would have hoped that there would have been more backbone
on that side of the government than we have seen in this piece of legislation.
The citizens have not been well served. If, at some point in the future, there could be an independent
poll, I can probably guess where each member fell on which side of the issue. This is fundamentally
wrong. It is fundamentally offensive to what we have accomplished in New Brunswick. It is
fundamentally, under no circumstances should this be supported.
Mr. Murphy: This bill takes me to the record of the government, which is one where we have the
record of the Orimulsion fiasco, we have the deficits, year after year, and we see them time and time
again try to spin this. This is a situation where $100 million to $125 million is at stake for the
taxpayers of New Brunswick, being the people of Saint John, but, more importantly, it goes back
to the Equal Opportunity days, when you would have competing municipalities, which would be
essentially coerced by any industry, looking for a tax break.
049 14:30
That is why the provincial government is supposed to be involved with this.
I do not how the minister or the government is going to spin its way out of the dicta of the Supreme
Court of Canada. I say “dicta”, because, when you have no statutory interpretation, you fall to the
case law. The highest case law in the country is the Supreme Court of Canada. On interpretation of
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terms of any statutory document, one goes, not necessarily to a case of the same nature and domain,
but to the dicta, the remarks of a court, in interpreting that specific word. Therefore, the member for
Saint John Harbour is quite correct with regard to the implications of the Supreme Court of Canada.
In fact, the Act will possibly be attacked in the courts at a later date, because of the negligence of
the government.
This bill may very well cost the city of Saint John $100 million to $120 million, as I have said. What
I am concerned about is that there is what I refer to as a people’s premium here, where we have the
people of Saint John making a sacrifice by taking on a huge project, such as this. People in the
surrounding area may have their lands affected as to its value. Under expropriation law that is
referred to as injurious affection, where they expropriate for a highway, the value of the adjourning
land is affected, and they have to pay some compensation. We are not going to have that in this
instance, i.e., an expropriation, but we expropriate by allowing this some of the value of the
surrounding land. That, indirect injurious affection, is costing the people of Saint John, and more
specifically, those in that area, the value of their property.
I believe, as an individual, that the LNG project is a safe project, but I do know that there are people
in the city of Saint John who are concerned about the safety of it. Having said that, that is something
that they must bear in their conscience for the next generation or two or three, depending upon the
life of this plant. That is something that any industry must pay for, not only with regard to the roads
and highways they use. In this instance, they say they will use none, and, in fact, it will be land that
they will be getting more money on of $500 000. However, it could have been $5 million.
More money must be paid here. This is a deal that was struck in the back rooms. We know full well
that the mayor would have had consultation with the provincial government in order to do this.
Where you have an industry that will have a reduction of what it would normally pay, a reduction
by as much as 90%, that whole deal then stinks. If there is going to be an EIA, we should have
concurrent EIA on the stink coming out of this deal.
I believe that this government, in the neglecting the Supreme Court of Canada, and in disregarding
the principles of Equal Opportunity, upon which this society has built itself for the last 40 years, has
lacked in leadership. This government must produce leadership that is equal to the sacrifice of the
people of Saint John. They are sacrificing their own value, to some extent, their quality of living
value there, and their property value.
I also believe that this government should have, and must, if they are going to proceed with this socalled
deal, link corporate transparency to that. There may be information that comes about in an
EIA in the future that is suitable for the people of Saint John, but why not have some guarantee from
the corporate responsibilities now that there is going to be complete transparency of that corporation
in regard to this plan and how the safety is being looked after?
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We have nothing right now. On television the other night, we saw that the tanks are 185 ft high.
Those are not pretty things to think about, nor are they pretty things to look at for the next two or
three generations. The people need to have some transparency from any industry that demands this
type of break.
C’était une entente qui a été faite par le maire de la ville de Saint John, et certainement avec
l’approbation discrète ou indiscrète du gouvernement provincial. Ayant dit cela, le maire était le
négociateur indirect pour le gouvernement, mais les gens de la ville de Saint John sont
complètement fâchés parce qu’il n’y a pas eu de transparence ni pour l’entente ni pour les
précautions dans la construction.
050 14:35
It is my belief that we are lurching back 50 years in this province by not having transparency, by
having a deal that gives away 90% of what the people of Saint John and the people of this province
would normally be entitled to. I do not know of a Saint Johner and I do not know of a New
Brunswicker that does not want a good job and a good industry in their region. However, there are
not a lot of people lined up, and not a lot of communities lined up to take a deal like this.
The city of Saint John realistically wants to build an energy hub, and I respect that. I believe that
with transparency, people will be satisfied with regard to safety. However, they have pride in the
city of Saint John, and they have a right to know all the implications of this deal, and all the
implications of safety.
What this deal says to the rest of Canada and the rest of North America is that we are peoples’ poor
cousins, we are central Canada’s poor cousins because we take these things without even asking.
I can assure you that if this were in Ontario or British Columbia, we would not have this situation
where we are acting as the poor cousins.
I believe that this deal is not a good deal, and that more funds should have been made available to
the people of the province.
My first question is whether the minister is aware, through her department or through her
goverment, of any meetings that were held by the Premier of this province and the Irving interests
prior to city council dealing with this issue in Saint John.
Hon. Ms. Fowlie: I would assume the member opposite is referring—when he said any meetings
that took place—to this tax break that was given to the facility by the city of Saint John. All the
members—I should not say all—a lot of the members opposite have stood on the floor in this House
and they have said it outside this House, that this was a secret deal struck in the middle of the night,
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behind closed doors, and so forth and so on. They had numbers of Cabinet ministers and deputies
attending.
The only meeting that was attended was one that was held at the Lord Beaverbrook Hotel. I believe
it was in January, but I might be wrong on the date. It was a breakfast meeting and there were
different departments, ministers and deputies invited to that. The topic of conversation was
economic development for Saint John. The people from Irving were in attendance, the Premier was
not in attendance, and there was no discussion on any type of a tax deal for this facility.
If the member opposite, instead of standing up and making accusations, would like to put his seat
on the line, I have given all the other members the opportunity to do so. Do you have proof? Produce
it. If not, resign.
Mr. Murphy: I take it that the minister has indicated that the Premier has never met with the Irving
interests or the Repsol representatives concerning a tax deal for this plant. Unless we are told
otherwise by her in moments, that is what will be assigned to the record of the Legislature and to
the public record of the province: the Premier has never met with those interests and discussed it.
My next question to the minister is in that this is such a massive tax break for this industry, what has
the minister or her department or the government, to her knowledge, done with regard to insuring
transparency of this company concerning the safety precautions that will be in place?
051 14:40
Hon. Ms. Fowlie: I know that over the course of the time that we have had some discussion on this
that members from the Saint John area were also asking similar questions. This has gone through
an extensive environmental impact assessment. It was actually a full environmental impact
assessment, a process that was ongoing for two years.
There was public consultation, and as part of the conditions that were put upon this project—there
are 24 of them, all of which must be complied with before any tanker can come in there loaded with
LNG—the company must keep a tracking database, and it must show compliance with all
conditions, including safety.
There is a community environmental liaison committee that is active in the area. The meetings are
open to the public and there is an employee working out of the regional office in Saint John who is
totally dedicated to this project. Their salaries must be paid by the proponent of the project, but we
pick the employee who will be working entirely on this project to ensure that all conditions are
complied with.
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At this present point in time, the company does have a building permit that is basically for just some
clearing and grubbing of land. There are many other conditions that need to be met before specific
things can be built, whether it is the tank or the offloading facility, or so forth.
I can assure the member opposite that of these 24 conditions, each and every one of them will be
met to the satisfaction of the Department of the Environment and Local Government and the
Technical Review Committee before any approval to operate is given for this facility.
Mr. Murphy: Where you have the people of Saint John so dramatically concerned about this
project—we know that the plant is not even under construction as of yet—and where an EIA is an
ongoing snapshot of the procedures and precautions, I would think that where we have such a
monumental historic collapse of governmental responsibility to the private sector, that there would
be an ongoing transparency demanded day after day.
I find the department’s and the government’s actions in this matter, as in what I have seen in the last
two years . . . their incompetence is breathtaking in this instance.
My final question to the minister is this: If there had been no tax break, if it had proceeded as one
would expect—and not to say I do not favour a tax break, I do, but not this one—in the absence of
a tax break, how much would the corporate interest pay per year in taxes?
Hon. Ms. Fowlie: Because I do not stand up and argue with the choice of words of the member
opposite does not mean that I agree with him. I am going on record that I do not agree with the
choice of words that the member opposite is using.
This was also discussed in the Legislature . . .
(Interjections.)
Hon. Ms. Fowlie: It is on record that I believe this government is extremely competent. I believe
that the staff of the Department of the Environment and Local Government, and the members of the
Technical Review Committee are extremely competent in dealing with this project. I do not believe
that the member opposite realized that when he is referring to incompetence, he was referring to
staff members who worked very diligently on this project also.
So, as I said yesterday when asked this question by the member for Saint John Harbour—I assume
that the member for Fredericton North was not listening because the heat may have got to him—in
regard to municipal property taxes on this project, the part that will be exempt from municipal
property taxes will be the offloading and the storage.
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052 14:45
We do not have the assessment of those projects. The staff in the department of Service New
Brunswick have looked at the entire environmental impact document, the whole document, to
determine what type of construction, what type of buildings, what type of facilities would be on
there, including a regasification unit. They felt that there probably would be $5.4 million worth of
municipal property taxes on this facility.
We do not know what the breakout will be between the municipal property taxes on the offloading
facility and the storage tanks versus the other buildings, the buildings on the site, the regasification
units, and so forth. These are still going to have municipal property taxes applicable to them.
When the facility is constructed, I am sure that we will be able to give the member for Fredericton
North the exact dollar figure—Moncton North, sorry. It is guilt by close association in seating. I do
apologize to the member for Fredericton North. My humble apologies. I will not make a comment
about all lawyers being the same. I apologize.
When the facility is constructed, I am sure that we can give the numbers exactly to the member for
Moncton North on what will be paid in municipal property taxes, and the assessment of the facility
that will be exempt.
Mr. Chairman: I would ask the staff to leave so the members can take their own seats. Are there
closing comments from the minister?
Hon. Ms. Fowlie: That was the last question. I want to thank the staff. I know that they have
changed and some have come and gone over the days, but I do want to thank them for their
diligence, their hard work, and for their knowledge of what they have been doing here. Thank you
very much.
(Bill 70, An Act to Comply with the Request of The City of Saint John on Taxation of the LNG
Terminal, was agreed to as presented.)