Sugerencias

Jurisdiction refers to the authority to make laws. In Canada, jurisdiction is a product of the

Constitution Act of 1867. In 1867, Ontario, Quebec, Nova Scotia, and New Brunswick signed the British North American Act (now referred to as the Constitution Act of 1867), followed by the remaining provinces and territories at later dates. It established the federal and provincial governments of Canada, outlining their legislative authority over matters in Canada. The federal government was given legislative authority over the militia, military

and naval services, and Defense, as well as criminal law and other matters (Section 91). Provincial governments had legislative authority on all matters pertaining to land and water—provided that the body of water is solely contained in that province—and, most notably, authority over municipal institutions (Section 92).

Probably the most important aspect of this document, at least in the context of emergency management, is that subject matters not mentioned in the Act allows federal and provincial governments to define their roles. Both the federal and provincial governments have the authority to make laws pertaining to emergency management and can use that authority to define their roles. The federal government’s approach has traditionally been that emergency management is best suited to be dealt with at the provincial or local level and should not be a federal responsibility because most emergency management has to do with waterways and land which are under provincial jurisdiction. Therefore, the federal government recognizes that responsibility for emergency management lies with the provinces through the Emergency Management Act. This is not to say that the federal government is not involved in emergency management, just that the obligation for planning and implementation of emergency management is not their responsibility. Instead, the federal government has chosen to take on a funding and assistance role. The Disaster Financial Assistance Arrangement program is designed to assist provinces in post-disaster recovery. In events where a state of emergency is declared, the federal government has provisions in place so that the military can aid in disaster relief (as described in Chapter 1). The actual involvement in emergency management planning and implementation, however, has very little to do with the federal government. They downloaded that responsibility to the provinces.

Provinces also have jurisdiction to make laws on emergency management and can make laws that impose obligations on local governments to do things or not do things. While the province has ultimate jurisdiction to make laws governing emergency preparedness and to establish minimum standards and criteria, that responsibility has largely been devolved down to municipalities who have limited capacity given the financial constraints and other priorities facing them.

In British Columbia, the Emergency Program Act passes down responsibility of emergency management to municipal institutions. Instead of taking the lead on emergency

management, the province’s approach is that emergency management is best dealt with at a local scale. Risk to hazards differ between municipalities. The City of Vancouver, for example, is exposed to coastal flooding caused by sea-level rise and storm surges. Maple Ridge on the other hand may not have to address direct flooding caused by sea-level rise because it is further inland. A universal plan at the provincial level that can be applied in all regions is viewed as not being the most effective strategy. Instead, management at a local level made more sense to the province. As such, that responsibility was delegated to the municipalities. The province remains involved in emergency management, but their position should be recognized as an advisory role with funding and financial assistance opportunities.

Municipalities, on the other hand, are legal entities defined by provincial legislation. Municipal governments are representative entities of their communities that make communal decisions based on what they perceive to be in the best interest of the community (Local Government Act). Where the province and federal government have the authority to define their roles in emergency management, municipalities do not. Municipalities are creatures of statute. They derive their power and existence through legislation, such as the Local Government Act. Municipalities, like private entities and citizens, are bound by provincial statutes, including those that direct or require emergency preparedness. As such, they make emergency planning and implementation decisions in both a statutory and common law context.

In 1996, the province of British Colombia adopted the Emergency Program Act

outlining the duties and responsibilities of government for emergency management and the provisions for which a state of emergency can be declared. It was under this Act that municipalities were given the responsibility for developing and implementing local emergency plans. As stated under Section 6(2) of the amended Emergency Program Act

(2015), “a local authority must prepare or cause to be prepared local emergency plans respecting preparation for, response to and recovery from emergencies and disasters.” Given that sea-levels are rising and storm surges are becoming more frequent and intense, coastal communities have the responsibility to create an emergency plan that should address such concerns. However, communities may be subject to multiple types of hazards and, thus, can interpret this provision of the Act—and the extent to which “preparation for,

response to and recovery from” is appropriate—however they like. For example, “preparation for” could be interpreted as developing a plan if a disaster were to occur, but it does not actually mean that infrastructure has to be implemented that would reduce the likelihood of a flood occurring in a given area. In the City of Vancouver, there is an entire department designated with the task of designing a plan and carrying out that plan addressing climate change which includes reducing flood risk. Other cities will not have the same emergency plans as the City of Vancouver for a variety reasons, but the point here is that the wording in Section 6(2) of the Emergency Program Act allows for multiple interpretations and the policies, programs, and decisions made are reflective of such interpretations. Although this Act imposes responsibility for emergency management onto municipalities, there is no defined standard in approaching it. Municipalities are able to approach emergency management as they see fit.

There are programs that are designed to financially assist municipalities in post- disaster recovery that may influence the decisions that municipalities make due to the conditions attached. This can deter emergency management by restricting access to resources if certain requirements are not met. For example, municipalities can receive financial assistance or compensation through the province. The Compensation and Disaster Financial Assistance Regulation of the Emergency Program Act is designed to outline the conditions for which municipalities and homeowners qualify for financial assistance in the event that a disaster occurs. Claims for compensation by municipalities can be made for structural repair, rebuilding or replacement; however, Section 30 raises issues pertaining to flood plain mapping and the ability to receive assistance. Section 30 states,

If an area is designated under the [Local Government Act] as flood plain and a public facility is built or installed in that area after the area has been so designated, no assistance will be provided to repair, rebuild or replace the public facility if it is damaged in a flood unless the structure was determined by the Minister of Environment, Lands and Parks or by Canada Mortgage and Housing Corporation to have been properly flood protected.

This provision acts as a deterrent for flood plain mapping. It incentivizes local governments to neglect flood plain mapping in their jurisdictions in order to be eligible for assistance if a disaster were to occur. In the event that flood plain maps are up-to-date and a flood

occurs, the burden of the cost to repair, rebuild or replace damaged or destroyed structures located in the designated flood plain falls completely on the local authority without the possibility for compensation or assistance. As one participant in this study explained, the Columbian Basin Trust had the resources to conduct a hydrological assessment in Kootenay for 20 municipalities, but the municipalities turned it down because of the liability attached. Therefore, the liability attached to flood plain mapping was the root deterrent for making this decision. It was decided that the best thing for these communities was not knowing so that if a flood were to occur they would remain eligible for assistance and avoid a potential economic collapse.

Claims for financial assistance or compensation can be reduced or declined if the Minister determines that insufficient measures were taken before, during or after the disaster (Compensation and Disaster Financial Assistance Regulation, S. 31). Therefore, although the Emergency Program Act, outlined earlier, requires the coordination of action to protect the health, safety, well-being and property from damage in the event that a threat of a disaster exists, if the minister believes that too little action has taken place to protect a structure then that assistance or compensation can be declined.

It is clear that municipalities are responsible for emergency management defined in provincial legislation and that there is no defined standard in its approach allowing municipalities to make decisions on the planning and implementation of responses based on financial resources and other priorities. Again, municipalities choose whether or not to act and how to act with regards to emergency management. The assistance provided in the event that a disaster does occur will be reflective of those choices and, thus, the social constructions of the community’s reality. The question now becomes: when does the local authority, having that responsibility to protect the people and property, become legally liable for their actions—including the choice not to act—and the associated costs in the event that a disaster does occur.