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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