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On May 17, 2012 Bill 34, which repeals and replaces the
Limitation Act with a new act, received Royal Assent in
the BC legislature. The new Limitation Act is expected to
be brought in force by regulation in 10-12 months. The new
Limitation Act imposes a basic limitation period of 2
years, where as the former act had limitation periods of 2, 6, or
10 years depending on the claim. From an environmental perspective,
the most notable aspect of the new Limitation Act, is the
consequential amendment to the Environmental Management
Act (the "EMA"). Section 47 of the EMA has been
amended to add the following new subsection:
(1.1) Despite the Limitation Act, a legal proceeding
may be brought at any time to recover the costs referred to in
subsection (1)
This amendment appears to eliminate the limitation period for
remediation cost recovery actions completely. This raises serious
concerns and appears to depart from the stated goal of the EMA to
encourage prompt remediation of contaminated sites. For example, if
the limitation period is indeed eliminated, an individual could
remediate a contaminated site and then 20 years later make a claim
for the remediation costs under the EMA. As the law now stands, a
cost recovery claim is complete when the remediation is complete
and the costs have been incurred and are known. In accordance with
the goals of the EMA once the costs are incurred, a plaintiff
should move expeditiously to recover those costs. There does not
seem to be a valid reason to exempt such a plaintiff from a
limitation period.
This is a significant amendment to the EMA and will likely lead
to significant commentary and reaction. It will bear watching
whether the BC government confirms its intent to eliminate
limitation periods for cost recovery actions or if the EMA is
amended further. In the meantime, organizations or individuals who
may be subject to a cost recovery claim should be aware that a
claim is no longer extinguished two years after remediation has
been completed.
On March 13, 2012, the BC government introduced Bill 30, the
Energy and Mines Statute Amendment Act, 2012 (the "Act")
for first reading. The Act is intended to "streamline and
clarify regulations" in four separate existing pieces of
legislation: the Oil and Gas Activities Act, the
Utilities Commission Act, the Clean Energy Act, and the
Strata Property Act. The most significant amendments are to the
Oil and Gas Activities Act and the Utilities
Commission Act.
Changes to the Oil and Gas Activities Act will clarify
the rules for municipalities and third parties doing work around a
pipeline. The amendments will also simplify the BC Oil and Gas
Commission's role with National Energy Board regulated
pipelines, broaden the rules for industry consultations, adjust
maintenance requirements for industry roads on private land, and
provide the commission with the authority to regulate the harvest
of timber for oil and gas activities. According to the Minister of
Energy and Mines, these amendments will increase the efficiency of
the commission and improve its ability to oversee responsible oil
and gas development in BC.
The amendments to the Utilities Commission Act are very
significant. The amendments empower the BC Utilities Commission to
levy administrative penalties for non-compliance with the act. The
maximum fine will be $1 million per day. The Minister
stated that this serious increase in the fines available will give
the BCUC an effective tool to ensure utility companies, natural gas
marketers and ICBC comply with the act and that these changes bring
B.C. in line with other similar Canadian and U.S. commissions.
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