The BC NDP should reconsider Bills 14 and 15

The latest in my series on bills the BC government will likely come to regret.

Some weeks ago, I joined a growing chorus criticizing the BC government’s Bill 7, which would have in its original form moved decision-making power from the legislature to cabinet. Here’s what I wrote at the time. Happily, the government listened, and David Eby announced significant changes to the bill soon after addressing the concerns.

We have new legislation that is once again moving decision-making power into cabinet’s hands—this time in an effort to speed “politically designated” projects through regulatory processes, the government is looking to empower itself to substantially change existing regulatory approval processes, or even replace them entirely.

For distinct but related reasons to my objections to Bill 7, I think the BC NDP will regret passing the bills in their current form, and ought to consider changes.

Some of my thoughts on the changes have appeared in The Tyee, and The Canadian Press, and in a few other places, and I thought I’d take a moment to lay out the reasons more fully here. (This is more or less a substacked version of a thread on Bluesky of mine earlier today).

Simply put, I predict the BC NDP will come to regret bills 14 and 15. They are buying an endless series of political and legal headaches here, alienating supporters, and handing detractors a steady stream of ammunition both on process and outcome.

Let’s take each of these in turn. The Tyee’s reporting above makes it clear how they're alienating supporters. As much as the government says it will listen to Indigenous peoples, representatives are clearly saying that they currently are not be listened to, and that “trust us, we’ll fix it in the regulations” is far less convincing than addressing objections in the legislation itself.

This spells out how legal headaches can result, as well. Any new approval process the government puts in place that doesn't have all stakeholders on board for is almost certainly going to be challenged in court. Just because the government says it will respect constitutional obligations to consult doesn’t mean that it will happen — that requires mutually accepted consultative processes to ensure. And if there’s an argument, it may well be resolved in court.

Moreover, as long as a first test case of the cabinet-led approach is working its way through the courts, other project sponsors may adopt a wait-and-see attitude, slowing the pace of new projects. At a minimum, the government is introducing a new source of risk, which is never great for large investments.

Politically, unless the government can find a way to get opposition onside (and in fairness, apparently a couple of former BC Conservative-turned-independents were absent for the second reading on Bill 15, suggesting the government may have an out here), the Speaker will have to cast a deciding vote. In that case, it would give the opposition grounds to accuse the Speaker of being partisan and politicized, further eroding decorum, and validating narratives that the NDP is politicizing important impartial institutions to serve political ends.

More importantly in my view, such a move would strip the NDP of the insulation offered by regulations conducted by an arms-length civil service. Basically, the government would much more directly “own” every project approved by cabinet fiat. Rather than a provincial or private project, in political terms it could be framed as an “NDP project.” In consequence every problem that crops up—people displaced, land claims incorrectly handled, environmental problem, cost overrun, etc. etc.—the NDP will own.

As Vaughn Palmer laid out last week, there are good reasons we put in place regulations, to avoid both the reality and the perception of government interference, of “playing favourites”. Indeed, not only will these acts alienate those opposed to projects approved under their auspices, the government can expect blowback from anyone touting projects not approved. “Why isn't my project politically important enough?!” will be a perfectly legitimate question to ask, and an awkward one to answer.

In sum, in setting those regulations aside, the end result may well be more political headaches, and less development to show for it.

It is not that regulatory frameworks are perfect! Far from it. Bureaucracies absolutely do have a tendency to expand, and they often encourage very risk-averse thinking. The way to deal with that is reforming regulatory frameworks though, not simply stepping around them on an ad hoc basis. As an example, many Indigenous land claims in the province have dragged on interminably; in some cases, they have persisted unresolved for decades. This is a result of many factors, but one of them is absolutely bureaucratic inertia. Reforming the way these claims are managed on the govt end, and resolving them definitively would remove a major hurdle. That would be hard but important and worthwhile work—far more lasting than a short term shovels-in-the-ground fix on an ad hoc project-by-project basis.

I get the urgency. But if we really are in a "new abnormal" as I've been calling it, this government would serve the province far better by a careful reform of regulations to improve efficiency, remove duplication and encourage active decision-making, rather than just saying “trust us, cabinet will do it”. If you wouldn't be comfortable with a political opponent wielding a given power responsibly, you shouldn't grant it to yourself, because there's no guarantee they won't have it themselves down the road.

Simply put, it's not just about trusting this government; it's about trusting any. Regulations allow stakeholders to verify that that trust is well placed. A professional, non-partisan civil service is a key guardrail of democracy, and a hallmark of parliamentary government. We sideline it at our peril, for it makes it ever easier to do, for ever flimsier reasons.

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Quick update: if folks in the BC NDP world need more persuasion how badly this could go, I thought I’d post an excerpt from p. 2 of the Auditor General’s report on the Fast Ferries debacle (highlighting mine):