LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON MUNICIPAL AFFAIRS Wednesday, 15 July, 1987 TIME - 8:00 p.m. :..OCATION - Winnipeg, Manitoba CHAIRMAN - Mr. S. Ashton (Thompson) ATTENDANCE - QUORUM - 6 Members of the Committee present: Hon. Messrs . Bucklaschuk , Cowan , Doer, Parasiuk Messrs . Ashton , Dolin, Downey, Ducharme , Ernst , Findlay and Maloway 4PPEARING: Bill No. 25: Mr. David Matas - Manitoba Association of Rights and Liberties Mr. Lyle Smordin - League for Human Rights of B'nai B'rith Sill No. 28: Mr. George Ylonen - private citizen of Lac du Bonnet Mr.

Walter Robbins - Concerned Citizens of Manitoba Dr. W.T. Hancox - Vice-President Waste Management Atomic Energy of Canada Ltd . Bill No. 65: Mr. Rene McNe il! - Manitoba Surface Rights Associa tion Mr. Phillip Frances - private citizen Mr. Adam Turbak - private citizen Mr. Rick Brown - Chevron Canada Resources Ltd. Mr. Bob Douglas - Keystone Agricultural Prod ucers Inc. Mr. Robert Puchniak - Tundra Oil and Gas am No. 68: Mr. Robert A.M . Young - TransCanada Pipelines Mr. Craig R. Frew - Vice-Pr esident, Operat ions, Western Gas Marketi ng Ltd. Mr.

Wilf Hudson - Manitoba Federation of Labour WRITTEN SUBM ISSION: Israel A. Ludwig - Winnipeg Jewish Community Coun cil Inc. MATTERS UNDER DISCU SSION : Bill No. 25 - The Discriminatory Business Practi ces Act ;

Loi sur les pratiques de commer ce discriminatoires Bill No. 28 - The Hioh-Level Radioactive Waste Act;

Loi sur les dechets radioactifs de haute activite Bill No. 58 -

An Act Respecting the Acc ount abi li ty of Crown Corporations and to Amend Other Acts in Consequence Thereof ; Loi concernan t !'obliga tion 136 redditionne lle des corporations de la Couronne et modifiant certaines lois Bill No. 65 - The Surface Rights Act;

Loi sur les droits de surface Bill No. 66 -

An Act to Amend the Electoral Divisions Act (2); Loi modifiant la Lo i sur les circonscriptions electorales

(2) Bill No. 68 -

An Act to Govern the Supply of Natural Gas in Manitoba and to Amend The Public Utilities Board Act; Loi regissant l'approvisionnement en gaz nature! du Manitoba et modifiant la

Loi sur la Regie des serv ices publics Bill No. 73 -

An Act to Continue Brandon University Foundation; Loi prorogeant la fondation de l'Universite de Brandon MR. CHAIRMAN: The Standing Committee of Municipal Affairs will come to orde r. I've been advised that the Premier , who has a bill before us, has to leave fairly soon . I'd like to see if there is willingness on the part of the committee to deal with The Act to amend the Electoral Divisions Act (2), which would require the presence of the Premier; and then deal wit h the other bills , public presentation s, etc ., afterwards . Is that agreeable to the committee? (Agreed) BILL NO. 66 - THE ELECTORAL DIVISIONS ACT

(2) MR. CHAIRMAN: We will be dealing then with Bill No. 66 first; then we will proceed to dea l with the othe r acts that we're cons idering tonight, includ ing the public presentations and the consideration of clause by clause. What is the will of the committee in regard to Bill No. 66 - c lause by clause, page by page? HON. H. PAWLEY: There are some amendments . Have they been distributed? MR. CHAIRMAN: It's a fairly short bill. Perhaps, following that suggestion , then we can introduce the amendments and deal with the bill as a whole afterwards . The Attorney-General will be moving the amen dments . HON. R. PENNER: An amendment occurs on page 2. Mr. Chairperson, I move

Wednesday , 15 July, 1987 THAT

section 2 of the Bill be amended by strikin g out proposed subsection 9(2) of The Electoral Divisions Act and substitut ing the following the rfor : Population of reserves. 9(2) Where an Indian reserve did not participate in the census of population referred to in subsection (3) or does not participa te in any subsequent census, the commission may use an est imate of the population of the Indian reserve prepared by the Manitoba Bureau of Statistics or by such means as is satisfactory to the commission . (French version) IL EST PROPOSE QUE !'article 2 du projet de loi soit modifie par la suppression du paragraphe 9(2) de la

Loi sur les circonscriptions electorales et son remplacement par ce qui suit : Population des reserves. 9(2) Lorsqu'une reserve indienne n'a pas participe au recensement de la population vise au paragraphe (3) ni ne participe a un recensement subsequent , la Commission peut avoir recours a une evaluation de la population de la reserve indienne preparee par le Bureau des statistiques du Manitoba ou par tout moye n qu'elle juge satisfaisant. MR. CHAIRMAN: Is there any discussion on that particular amendment? Pass . Mr. Penner. HON. R. PENNER: I move THAT proposed subsection 9(3) of The Electoral Divisions Act as set out in

section 2 of the Bill be amended by striking out the figures "1981" where they appear therein and substituting therefor the figures "1986". (French version) IL EST PROPOSE le paragraphe 9(3) de la

loi sur les circonscriptions electorales figurant a !'article 2 du projet de loi soit modifie par la suppression de "1981" et son remplacement par "1986". MR. CHAIRMAN: Is there any discussion on that amendment? There being no discussion-pass. HON. R. PENNER: Bill as a whole, Mr. Chairperson . MR. CHAIRMAN: Bill as a whole-pass ;

Preamble­ pass; Title - pass. Bill be reported . HON. H. PAWLEY: I wish they all were as easy as that. Thank you very much . MR. CHAIRMAN: Following along with the very cooperative mood that we've been in, we'll proceed now to public presentations on other bills, perhaps in a similarily cooperative fashion. 137 BILL NO. 25 - THE DISCRIMINATORY BUSINESS PRACTICES ACT MR. CHAIRMAN: The first bill before us is Bill No. 25, The Discr iminatory Business Practices Act . The firs t presentation is from Mr. Willi am Converse from the Manitoba Associat ion for Rights and Liberties . Mr. Converse . MR. W.

CONVERSE: We couldn 't get Dr. Converse to be here. I do have a pinch hitter. I just wanted to get up and say a word to congratulate both sides of the House and wish them bonne chance on ending the Session, hopefully, this week . My pinch hitter is a man who needs no introduction , but I want to make sure that you know which hat he's wearing , Mr. David Matas , who is a valued member of the MARL Board of Directors . MR. CHAIRMAN: Mr. Matas . MR. D.

MATAS: The first thing I want to say on behalf of the Manitoba Association for Rights and Liberties is we wish to commend the government for introducing this bill and congratulate them on the bill. We think it's a good bill in principle. We're glad to see it. It was as a result of the MTX affair which brought evidence to light that Jews and women were not being allowed to go to Saudi Arabia as part of the MTX contract, and this bill, if it's passed, will be a happy ending to a sad story . It will be a positive outcome to what histo rically was a negative incident.

So in terms of purpose and intent and overall effect, we like the bill. There are a couple of suggestions we do have to make, however. The first and perhaps the most important is to deal with

section 4. In somewhat,

section 4 says if there is a visa requirement that prevents someone from going forward on the basis of race or sex, then the Canadian or the Manitoba company can go ahead all the same, but shall offer to the affected employee the next equivalent employment opportunity for which that employee is qualified. We feel that that , in effect , negates the principle of the bill. The bill opposes discrimina tion in principle, but then , through

section 4, allows it to take effect in practice . The type of problem we saw with MTX could reoccur if this particular provision were allowed to continue in the bill , so that somebody like MTX in the future could refuse to allow women or Jews to go forward, or say that they would not go forward . What we would like to see is if a company is faced with a requirement that is offensive to Manitoba standards, that the company should not do business in compliance with those standards. It shouldn't be party to a transaction or party to a course of conduct that violates those standards .

We must not forget the inducive effect this sort of bill has. When we have a law that says this can not be done , then it is poss ible to say to a foreign government , it is possib le for a business that's dealing with a foreign government , to say our law prevents this from being done, and it can have an effect in negotiations about the business transaction . It could allow the transaction to go forward in a non-discriminatory way;

whereas, if the law accepts , in principle , the possibility of discrimination with somebody getting employment elsewhere, then the employer or the business person

Wednesday, 15 July, 1987 is faced at a disadvantage in negotiating with the foreigner . The foreigner can say, well , your law is prepared to contemplate this sort of activi ty; therefore, you can do business with us; therefore, we can carry on with th is discriminatory visa requirement. I should say that this issue has been faced in the United States in litigation and the American courts have said that this sort of visa requirement of a foreign country is not a bona fide occupational requirement. So I don 't think it can be excused under any general princ iple to that effect.

The general principle is we don't want to participate in discrimination. We cannot change foreign visa laws, but we can choose whether or not we go along with them. I say that if we're faced with a choice of going along with them or not, we should say, no, we won't go along with them rather than just say, yes, we will but the person who's discriminated against can get ,mother job . That's the first comment. • The second comment we have has to do with the "no negative statement of origin, " which causes problems. What we're concerned about here is a boycott that is organized not by foreigners but by Canadians.

We are concerned that this sort of provision might be used in such a way that it will be directed against Canadians organizing boycotts rather than foreigners trying to impose boycotts on Canadians.

Now there are ways in the bill which would prevent that from happening because there's an Order-in­ Council power and there 's something in the bill that says if there's a government policy to that effect , then the government policy carries the day; but the problem with those provisions is that it leads to government­ approved expression; that if the government approves the boycott, it's all right, but a Canadian organized boycott that is not government approved is not all right. What we really want to focus in on here is the foreign­ imposed boycott rather than a boycott as such .

There may be a way of drafting the provision in order to deal with that particular problem. I taught Civil Liberties at the University of Manitoba this year and a student of mine did a paper on the issue and he had a suggestion for drafting, that it might be possible to draft it in such a way, to say that it was not in response to a foreign request, so that might deal with the problem. If there is a way of drafting ourselves out of this problem that would be fine, but if there's not a way of drafting ourselves out of this problem, we feel that this

section should just be deleted. That's what our concern is there . The third concern we have is full right of appeal. There's a limited right of review here from our decisions based on errors of law, jurisdiction and natural justice. What we believe in this issue, that there should be an unlimited right of access to the courts. This is an issue that comes up in several areas and it's a thorny issue, where there's debates on both sides and I don't want to go into the details of that debate but that was the conclusion we came to on this bill.

Finally, our fourth recommendation was that the government prepare a brochure explaining the operation of the act and the type of practices which are prohibited and distribute it to businesses. Those were the points we had to make to add to what we think, on the whole , is a good bill. MR. CHAIRMAN: Are there any questions? 138 Mr. Penner. HON. R. PENNER: Thank you for a very good presentat ion , Mr. Matas. I have a couple of questions for clarification.

First of all, with respect to your criticism of the exemption provision, it seems to me - and I want your response to this - that as with other bills, so too with this bill , there is a jurisdictional problem. The government can impose upon itself as a matter of a course of conduct, a decision that it will not trade with , or will not contract with , or will not conduct ventures in a country which discriminates and insists on that discrimination .

But in terms of legislating so that someone in the private sector has said that unless they do this, that, or the other thing, that company can't trade with, let's say, Saudi Arabia; surely we would be legislating outside of our jurisdiction. Would you not agree with that? MR. D. MATAS: The jurisdictional issue, as I see it, is the same whether it says you can do it, provided you give the person the next job, or you can't do it. The private company being affected is the same in both cases.

Obviously this is a type of law we would like to see done nationally, and if it were done nationally, it would have a wider scope and it might be phrased differently. I don't think the bill as a whole is ultra vires . I think the draftsman was very careful to try to get it within provincial jurisdiction and that's why perhaps it doesn't read as freely and easily as it might , but I think the draftsman has solved the problem . We have a bill like this in Ontario , which has not been subject to any constitutional challenge and does not have this particular provision in it. HON. R.

PENNER: In response to my question, Mr. Matas, you're not disagreeing that - and I'll put it as broadly as I can - there may be a const itutional problem legislating with respect to trade and commerce outside of our boundaries? MR. D. MATAS: Well, that's certainly putting it very broadly. Once we legislate outside of our boundaries , we are in a problem, but what we're talking about is what somebody does here in Manitoba. I see what's happening overseas as part of an interconnected chain with what's happening here and it's a question of the locus of the event.

If a Manitoba firm is doing business here, is recruiting here and sending the people overseas, I would say the sum and substance of the activity is in Manitoba, and it's artificial to imagine it legally as happening in a foreign company , as opposed to in Manitoba . We cannot legislate beyond our boundaries, but I do not think, by removing this particular provision, we have cast ourselves into any more of a constitutional problem than we had before, or indeed any constitutional problem at all. HON. R. PENNER: Okay I guess we'll have to agree to disagree on that.

Again, for clarification with respect to your point abou t 3(4), "No negative statement of origin . No person shall,

Wednesday, 15 July, 1987 for the purpose of engaging in or assisting in engaging in the discriminatory business practice, seek or provide a statement, whether written or oral , to the effect that any goods or services supplied or rendered by any person or government do not originate in whole or in

part in a specified location ." So that sfmply says, does it not, and again we can only legislate with respect to Manitoba, that no one in Manitoba can demand of another person in Manitoba, let's say a sub-contractor, that they specify that the goods and servi'ces that they 're to use in an overseas contract ddes not originate in Israel. That's what the

section appears to say, wduld you ndt agree? MR. D. MATAS: Yes. HON. R. PENNER: In that light, would you clarify your objection to that

section for me, and why you think it should be removed? MR. D. MATAS: Well, what I was suggesting perhaps might be added to deal with the particular problerr, that we're concerned with, is the phrase not in response to a foreign request. What myself and others in the association are concerned about here is the California grapes example. Suppose somebody wants to boycott California grapes because the workers are not unionized, and it's not as a result of some foreign request, it's a locally-motivated desire.

There's no Canadian Government or Manitoba policy boycotting California grapes and we feel It shouldn't be necessary to have some sort of government policy boycotting California grapes for people to want to do it. HON. R. PENNER: Thank you very much again for your brief and for your answers to my questions. MR. CHAIRMAN: Mr. Dolin. MR. M. DOLIN: Just a couple of questions.

Section 1(2) of the act - I assume you've read where it describes basically secondary and tertiary boycotts beirig prohibited. Do you have any problem understanding that

section of the act? MFi. D. MATAS: i thought I understood it at the time . Do you have a question about it? MR. M. DOLiN: i'm still not clear on

section 4. If the Canadian Wheat Board or the Manitoba Wheat Pool were to sell wheat to a country in the Arab block, for example, which had secondary or a primary boycott, which would honour our employees in allowing Jews or women to be employed; are you suggesting that we should stop doing business entirely with the Arab block? MR. D. MATAS: No, that's not the nature of my suggestion. MR. M. DOLIN: Well, perhaps Mr. Matas can complete his answer. MR. D. MATAS: I am not suggesting, in your example, that the Wheat Board would stop doing business with Saudi Arabia in terms of selling wheat.

What I'm 139 suggesting is if it's a matter of sending employees over, they can 't, in effect, say, well , we're going to send over the men but not the women; we are going to send over the Christ ians but not the Jews, because that's what their visa requirements are.

If they're faced with the situation where they are going to be sending people over and they've got a discrimina tory requirement , in that situation they should be saying we will send over who we want, provided they meet what would be public policy requirements, if there are non-discriminatory requirements of a foreign country that are within its normal sovereignty rights, but other than that, we will send over who we want, and if we're being told we cannot send over women but only men, and we can not send over Jews but only Christians , we will send over nobody. That's what I'm saying;

whereas what this says is, if we've got that sort of requirment, we will do th winnowing out ourselves and we will send over who you want and we'll just promote these people at the next available opportunity . MR. M. DOLIN: Just to clarify that position, if they do not accept the employees we send over, you are saying we cease to do business with them. What

section 4 says is that we provide compensation if we wish to do business with them. You have a problem with that. Could you clarify that? You say we cease totally and entirely to do business with a country that refuses to accept the people we send? MR. D. MATAS: Now, what I'm saying is that we shouldn't be sending anybody over. There may be business that could be done without sending anybody over, for instance, like a shipment of wheat. What I'm saying is we shouldn't sort them out . The problem with Compensation is twofold.

It's participating in the foreign-imposed discrimination and indeed condoning it; and secondly, these requirements are not as inflexible as one may think, perhaps. If the foreigner is faced with a law that says the Canadian Wheat Board, or whatever - I'm not sure ii this can touch the Canadian Wheat Board - but a Manitoba firm cannot do this, then that's something that could enter into negotiations to, in effect , allow these people to go over. MFi. M. bOLIN: A final question .

In the MTX situation, the Saudi Arabian Consulate, we were advised by the Department of External Affairs , said they did not discriminate against women or Jews but dealt with each appiication individually; therefore, they were not systematically discriminating. If they refused the visa application or a particular person , ii you wiped out

section 4, it would strike me that that person who was already offered that position because they were refused a visa, but not according to the Saudi Arabian Embassy for racial or gender reasons, that person would not be compensated then . Don't you think that

section 4 should be included in order to allow for that kind of compensation? MR. D. MATAS: You are assuming that without

section 4 the transaction could go ahead. But I suggest the way the bill would read without sect ion 4 is that nobody

Wednesday, 15 July, 1987 could go over. You've produced an example where you say Saudi Arabia doesn't discriminate systematically, bu t does disc rim inate in an individual case. But that would fall within the bill , because the bill requires discrimination on a basis of an attr ibute of the per son, and it defines what attributes are. If one person is discrim inated against on the basis of the fact that he's Jewish, or on the basis of the fact that she is a woman , the bill is infringed and without

section 4, it would mean nobody could go over, and that's what we say should happen. It's not that we're taking away compensation from the infringed person. What we're saying is we're taking away participation from discr imination in the Manitoba company . MR. M. DOLIN: A final, final question on that same issue . If a person is denied a visa by the Saudi Arabian Embassy and they are not required by any law of ours to give a reason, but they have been offered the job by MTS, this would allow them to be compensated .

You are suggesting that that be removed, which would not allow compensation unless we can show, by some prima facie evidence , that they have been discriminated against because of gender or religion. I have a problem with that and I'd just like you to clarify your position . MR. D. MATAS: I think I'll proceed to answer that ques tion without my name being called. You 're suggesting that a person could be compensated with

section 4 even if we don't know the reason for the visa denial, but that's not the way

section 4 reads .

Section 4 reads that a person can be compensated for the visa denial if he was denied his visa, based on an attribute of the person . So you would still be faced with the problem of establishing that he was denied a visa on the basis of religion, or on the basis of sex or what have you. Once you've established it for the individual , you 've got all you need to show that the act has been violated , for the purpose of preventing the company from doing business if this

section isn't here, as well as for the purpose of providing compensation if this sect ion is here. MR. CHAIRM AN: Before proceeding further, I would just like to remi nd committee members , once again, that the purpose for questions is clarification of presentations and not to engage directly or indirectly in debate with the witnesses. Perhaps we might be reminded of that when we ask further quest ions later on tonight. Are there any further questions? Mr. Enns . MR. H. ENNS : Mr. Chairman , just for the record, I just simply want to indicate to the record that the Opposition finds this bill incomp rehensible .

We don't understand it. We're uncomfortabl e by passing legislation that we don't understand. I speak for and on behalf of former Attorney -General , Mr. Mercier, my House Leader , who finds the bill incomprehensi ble. The bill is before us because of the action of a Crown corporation, Manitoba Telephone System, through a subsidiary, MTX. 140 We endorse what we think are the princip les conta ined in the bill, but we don' t understand the bill. We don't under stand what we're passing here. MR.

CHAIRMAN: Perh aps it was appropriate that made that warning just prior to those comment s, because I think that has already shown the reason why we have those rules. I would like to remind people once again that the purpose of committee hearings is to hear members of the public and to ask questions for clarification; not to engage in debate with witnesses or to make statements which are perhaps better seen as part of the debate itself . MR. H. ENNS: Oh, come on. MR. CHAIRMAN: So I would ask committee members to please ... MR. H. ENNS: Mr. Chairman , on a point of order . MR. CHAIRMAN: Mr. Enns. MR. H. ENNS: Mr.

Chairman , I object to that

interpretation. I was not engaging the witness in a debate . I was putting on the record what I thought was a reasonably important position that the Opposition put at Second Reading of this bill. We are now at another stage of the passage of this bill, namely the committee stage of the bill and I think it's important that the Opposition's position be noted at all stages of the bill . MR. CHAIRMAN: Mr.

Enns, I would indicate in that situation, the appropriate time to place comments on the record would be when we discuss this clause-by­ clause, not when we're questioning members of the public on public representation . MR. H. ENNS: On the same poin t of order, Mr. Chairman , when I see the mover of the bill, the presen t Attorney-General and other governmen t members questioning a capable representative on the bill and they 're having trouble understanding what the bill means , I simply wanted to put on the record the understandable confusion of the Opposition in this instance. MR. D.

MATAS: comment on this . wonder, Mr. Chairman , if I might MR. CHAIRMAN: Mr. Matas, please go ahead . MR. D. MATAS: MARL supports the principle of this bill, even though we have some reservations , and we may be fooling ourselves, but we think we understand it. We would hate to see this bill fail because there is a lack of understanding of the bill and - this may not be the place - but we are available , at the invi tation of anybody here, to attempt to exp lain what we understand to be the purpose of the bill and the purpose of each and every individual clause . MR.

CHAIRMAN: So long as there's no misunderstanding about our rules and proced ures . Thank you Mr. Matas , for your presentation .

Wednesday, 15 July, 1987 The next presentation is Mr. Lyle Smordin from the League for Huma n Rights . Mr. Smordin. MR. L. SMORDIN : Let me add , Mr. Chairman , it's the League for Human Rights for B'nai B'rith , not to be confused with some other organizations that don't exactly have the same goals.

I'm the chairman of the midwestern region, and my first words , on behalf of B'nai B'rith, are ones of praise for the government - as the previous speaker said, this arose out of the MTX affair of approximately one year ago, and at that time , the government had promised to introduce legislation which would in effect stop the MTX affair from reoccurring, and that, indeed, they did - words of praise for the content of the act and the bill and, certainly, when I came here this evening I thought I understood it as I read it.

I think perhaps I've read the Ontario bill very carefully over the past number of months , and that helped me read the Manitoba bill and understand it a little more carefully . However, I have the same problem with respect to

section 4 as the previous speaker representing MARL did . I know where the genesis of that particular

section came from . It came from the Coopers and Lybrand audit of MTX and parts of that introduced by and written by Mr. Peter Cumming, who addressed the subject of human rights. This was a recommendation from him assuming that, on a balancing of costs and benefits, a Crown corporation like MTX, with government approval and support, decided to do business in Saudi Arabia or some other jurisdiction, notwithstanding the differing human rights and values.

It's recommended the corporation have, in its code of business conduct, a statement of compensatory measures to be introduced if persons selected to work in the foreign jurisdiction are denied the employment opportunity because the reasonable conclusion is that the foreign jurisdiction prevents the entry of persons on a basis that would be unlawful discrimination, in terms of Manitoba law, and I would underline those words.

The recommendation - and at that time I was appalled by the recommendation , and I'm further appalled to see that it crept into the bill - is that it's okay to discriminate and now you're going to, in effect, compensate somebody for that particular discrimination.

The bill, the way it's worded now, is where a person selects someone for employment in connection with a transaction which requires travel outside of Canada, and requires the obtaining of a visa, and the person is unable to meet visa requirements based on an attribute of that employee - and an attribute would not be an indiscriminate decision, but would be something that would relate to race, colour, creed, sex, religion, etc .- the person or company may proceed with the transaction and the person, who was discriminated against can't have the job, but somewhere along the line in the future , we're going to compensate him or her.

I think that particular clause, that particular

section of the bill, is really not what the government intended when they told us a number of months ago, they would be dealing with legislation somewhat like the Ontario 141 act, also called The Discriminatory Business Practices Act. I would recommend, not that the

section be amended in any such way, but I would recommend that the

section be elimin ated for some of the same reasons that the previous speaker had alluded to. I don't think that really was intended , and I don't see any way of correcting the error that crept into the bill, other than completely eliminating that

section and letting the law stand with that particular bill. MR. CHAIRMAN: Are there any questions? Mr. Penner. HON. R. PENNER: Mr. Smordin , I want to make doubly sure that I understand your point of the question in the sense of fact , through a hypothetical, and then a question of law. Assume a major Manitoba construction company -. the government can impose upon itself any rules it wants - but we have a major construction company gets $100 million contract to build an airport in Saudi Arabia .

In fact, the only way they can carry out that contract is to provide most of the technology and the technicians from Manitoba, right? Otherwise no contract and all of the jobs generated in Manitoba are gone? MR. L. SMORDIN: Yes. HON. R. PENNER: In fact, in competition , the best qualified for Engineering 3, airport runways , are women. There are women engineers working in big construction companies; and, in fact, it means a promotion for them, but they can 't get visas systematically and it's clear they can't get visas because they're women.

Are you really saying therefore, that the Government of Manitoba should, by law, say that they can't carry out that contract in Saudi Arabia? MR. L. SMORDIN: Absolutely . Why would the members of this Legislature pass a bill into law which would, in effect, describe for themselves a method where they can eliminate and overlook the particula r law that they themselves want to pass . I agree that that has some very unfort unate circumstances for the economy of the Manitoba company that achieved that particular contract, in your example , Mr. Attorney-General.

However, I don't think the price is high enough to discriminate against the citizens of Manitoba by saying , we'll give you another job, the next available job that comes along. After all, there may not be another available job that comes along, or that just seems to rub the wrong way from the things that this government was saying last year. HON. R. PENNER : Now, with the question of law, are you saying to me, with your knowledge of the law being familiar wit h it, that you think that we can actually , as a provincial Legislature , legislate to prevent a Manitob a company doing business in a foreign company? MR.

L. SMORDIN : We can't do that, but we can determine that to be a discriminatory business practice under the act. We can, by this bill, with the teeth that it has in there, assess a fine of, I believe, $50,000

Wednesday, 15 July, 1987 maximum. That may not be in line with the $100 million contract that you're referring to, but that also has further teeth; the further teeth that you r departm ent has put into this bill has been that they can't do government contracts for five years . So the teeth in the bill were, okay we can't stop you from doing business in the foreign country, but you are first ly found to have offended the act, and you were fined $50,000.00. Second ly, you are barred from doing business with the Government of Manitoba for a period of five years ; that's the answer . HON. R.

PENNER: That's " an" answer. MR. CHAIRMAN: Mrs . Carstairs. MRS. S. CARSTAIRS: Mr. Chairman, can Mr. Smordin tell me if there is a similar position in the Ontario regulation , or would an Ontario company be banned from, in fact, the engaging in the building of this airport in Saudi Arabia? MR. L. SMORDIN : There was no similar provision in the Ontario Act which was passed in 1977 . There's no provision that talks about compensating somebody, and so it would be, in effect, an offence to discriminate in this way. MR. CHAIRMAN: Any further questions? There being no furt her questions, thank you , Mr. Smordin .

There was one furthe r presentation with regard to this bill. It's in the form of a letter to the Standing Committee. I assume it will be accepted as a written brief. It's from the Winnipeg Jewish Community Council, submitted by Israel Ludwig . BILL NO. 28 - THE HIGH-LEVEL RADIOACTIVE WASTE ACT MR. CHAIRMAN: The next bill before the committee is Bill No. 28, The High-Level Radioactive Waste Act. The first presentation is from the Concerned Cit izens of Manitoba, Mr. Walter Robbins; or Ms. Anne Wieser , the Concerned Citizens of Manitoba . Perhaps if you could state your name for the committee . MR. G.

YLONEN: My name is George Ylonen , of Lac du Bonnet, a mine r and a farmer, and I thank you for taking me on such short notice. After you hear the Concerned Citizens ' presentations and recommen dations to the act you're dealing with now, you have it in your power to rectify a great many wrongs that have taken place starting in 1979 . You have a lot of information, a lot of input in the last several years . This didn't take place in'79 when AECL approached our council at that time.

The council was uninformed and information was withheld from this council at that time and they were told some half- truth s, and one of the se is that the AECL program was to be five years for geophysical survey and study of this rock formation - five year s. AECL also said that this type of rock was very solid and there was no water whatsoever in that formation ; 142 and on that basis, the council, without taking any othe r information in, passed a reso lution supporting thi s undergro und research that is taking place now, and it shouldn't have taken place here because this was totall y the wrong way to do it.

As it turns out, this 21-year lease could expand to 50,000 or 500,000 year s. The rock formation contains much water. At the time, we told them that t here's no such thing as no wat er underground and now their geophysical studies and hydrological studies are proving it to be true , that there 's lots of water in this place and it is a totally wrong idea of putting nuclear waste underground . Your position on this new legislation that you're about to pass will make a lot of people rest an awfu l lot easier if you can give us some consideration with your act. Thank you very much. MR.

CHAIRMAN: Walter Robbins, please . MR. W. ROBBINS: Thank you very much. Before I go to my prepared comments , I would like to just say a word about the jurisd ictional question on this bill . We've talked to lawyers for several years about such legislation and it seems that there are lawyers who tell you why you can 't do something and there seem to be other lawyers that tell you how to do something. I suppose it's a good idea to listen to both, but what we're heard here is that there are grey areas in which the province has jurisdiction. (Mr. Deputy Chairman, J .

Maloway , in the Chair.) Now, admittedly, AECL or the Federal Government of Canada has a good deal of power in the area of atomic energy , which would include nuclear waste, but we believe and some of the lawyers we've talked to, that the province has a right to protect the people of Manitoba in regard to the environment, in regard to the use of natural resources , in regard to the use of tourism and recreation, property values , health and safety of people, and the transportation of certain types of goods through the province .

So we don 't think this is a black or white issue as far as jurisdiction is concerned . Now, hopefully , this bill will never be tested in the courts. However, if it is, what we're suggesting here is that there's more elbow room , more flexibility than perhaps some people seem to think . Now I'd like to go to my prepared comments . The committee strongly endorses , with some changes , passage of Bill 28, which clearly prohibits the permane nt and irretrievable emplacement of high-level radioactive waste materials in a repository in Manitoba.

Such a legislative prohibition has been one of the principle objectives of our group since its incept ion in 1980. Further, the bill addresses the expressed concerns of many individuals and groups throughout this province such as cottage owners and cottage owner associat ions, churches and church associations , and over 65 municipal councils, which passed resolu tions opposing such a facility , so I think it is not correct to make the assumption that I'm here on behalf of just a few people.

There have been many, many people, and many groups in this province who have been requesting this kind of legislation for many years.

Wednesday, 15 July, 1987 As a result of our analysis of the bill, which includ ed consultation with a scientific and a legal advisor , the committee mak es the following observations and suggestions designed to clarify and improve Bill 28 - I would like to emphasize that we are trying to clarify and improve. Our basic position is that we are endorsing and we are for thi s bill ; so our comments are designed to clarify and improve, hopefully it will. Under the

definitions, we believe that the term "disposal" is inappropriate .

We suggest, in its place, the term , "permanent emplacement ." Since scientists generally agreed that sometime in the future , radioactive material will eventually escape containment and reach the biosphere , the material cannot be said to have been destroyed, gotten rid of, or finally and conclusively settled , in the meaning of the common and dictionary usage of the term , "disposal." Use of the term disposal really means abandonment of responsibility in the case of high-level nuclear waste; such waste will continuously need monitoring and caring .

The term, "high-level radioactive waste," according to scientific advice we receive, should include neutron­ activated reactor components or tubes which may contain certain elements which we've listed here and I will provide this list to the committee, because these elements of half lives, of 20,000 to 80,000 years respectively , and could be considered high-level waste, even though it is not spent nuclear fuel. You see what I'm saying, there are other kinds of high-level waste .

An important point that has been raised by nearly everybody who reviewed this bill is the question of the term, "research ." It's used extensively throughout the bill , but it's not defined under the

definitions . Nearly everyone we talked to noted that omission . There is a deep concern that the term research can be interpreted in such a way as to permit activities which are actually developmental and operational in nature . This point, by the way, has been frequently made in connection with the American Strategic Defence Initiative - Star Wars - and it holds true for nuclear waste as well, in that a temporary research situation could extend over time to become a de facto operational program. We strongly urge that the term " research " be defined and limits placed upon it.

The term " reprocessing" is used within the definition of high-level radioactive waste . We would like clarification . We would like to know why that definition specifically excludes spent nuclear reactor fuel which is "not intended for reprocessing." Surely the government would not permit reprocessing of spent nuclear fuel in Manitoba; and yet, that is exactly what is implied in the bill the way we read it. Under the present wording, it would be possible to bring spent nuclear fuel into Manitoba , reprocess it and ship it back out.

We are very strongly opposed to the reprocessing of spent nuclear fuel , because it involves very dangerous processes and creates plutonium , the main substance used for thermonuclear explosions, among other things . We request of the drafters of the bill that the definition of high-level radioactive waste cover all spent nuclear fuel not intended for legitimate research, including that which would, in the future, be intended for reprocessing. In other words, to make a long story short, we request that Bill 28 clearly and definitively prohibit the reprocessing of high-level radioactive waste in Manitoba .

Additional comments other than

definitions ; we note that under

section 2(c), this bill permits interim storage of high-level nuclear waste in the province for up to seven days . We're not at all clear on the meaning and intent of this seven-day period. It could be cons trued, in the light of the above comments, to permit repr ocessing of spent nuclear fuel , assuming we could reprocess the fuel in seven days. The bill would permit the movement of high-level radioactive waste into the province, to Pinawa , where it could be reprocessed and shipped out of the province .

Now we are well aware that the Government of Canada currently has a ban on reprocessing , but for many years Atomic Energy of Canada Ltd . has been quite open in its position favouring the reprocessing of spent nuclear fuel and in one of their recent publications, they stated that they expected the Government of Canada to make a decision on that before the year 2000 . I'm paraphrasing that. We therefore would like clarification of this seven-day interim storage provision to prohibit the reprocessing, as stated in our comments under

definitions . Under

section 2(d), the bill permits storage of high­ level radioactive waste subject to continuous monitoring as long as it provides "reasonable human access to the containers in which the waste or nuclear fuel is contained ." Now , this provision would make it possible for the creation of a permanent , full-scale , mon itored , retrievable storage repository in the province. In other words , all the high-level nuclear waste in Canada, and perhaps from elsewhere, could wind up in Manitoba in a monitored retrievable storage repository .

We are certain this is not what the framers of the bill intended and we assume this provision was inserted to permit AECL to continue using its existing above ­ ground storage facilities for small quantities of research waste. The committee is as much opposed to an operational monitored retrievable storage repository in Manitoba, as it is to permanent unde rground non­ retrievable emplacement.

We ask that this provision be clarified so as to clearly prohibit a permanent monitored retrievable storage repository in the province . 143 This bill does not address the question of transportation of high-level radioactive waste through the Province of Manitoba . Such transportation should be prohibited, and restrictions, limits and controls should be placed on wastes coming into the province for research purposes .

If, for example, the Federal Government should place a permanent repository in Saskatchewan, waste from eastern reactors could travel through Manitoba; or if AECL follows through on its stated intent to transport waste from its Slowpoke reactors, which it is attempting to market in the Northwest Territories , and store it at Pinawa, such waste must travel through the province . The issue of transp ortat ion can be expected to become more contentious as more nuclear materials are transported from place to place . It is a fact that every shipment of nuclear waste emits radiation .

In fact, you could almost say that every time nuclear waste is shipped, it is an accident. The possibility of real accidents, plus the controversy over the health effects of low doses of ionizing radiation is such that Manitoba can ill afford to overlook the transportation aspects of the nuclear fuel cycle . We request that a transportation

section be added to this bill or that other transportation

Wednesday, 15 July, 1987 legislation be amended to protect the province in this crucial area . In conclusion, you'll be happy to know , Concerned Citizens of Manitoba appreciates the opportunity to have commented on Bill 28. We would like to commend the government , and especially the Minister of Environment , Gerard Lecuyer, for taking this initiative, and to thank the Opposition parties for, what we hope will be, their cooperation. We trust that serious consideration will be given to the modifications we have proposed to improve this bill. Thank you very much . MR.

DEPUTY CHAIRMAN: Are there any questions for the presenter? Mrs . Carstairs. MRS. S. CARSTAIRS: Yes, I have a question with regard to medical use of nuclear waste . In cobalt treatment, I understand that it is a high­ level waste . At the present time, that high-level waste is being sent back to Chalk River. What would be the reaction of your citizens group, if Ontario passed legislation like this and said that we can't transport it back to Chalk River? This bill would seem to say it can't stay here either, so do we end, for once and for all, treating cancer patients with this type of treatment? MR. W.

ROBBINS: I don't have a good answer for that. I do know that no one in our group is advocating that latter part of your statement, that we prohibit medical treatment if the treatment is useful. As far as the nuclear material goes, if it is indeed considered high-level waste - and I'm not certain about that - I've heard

definitions to the effect that that is not high-level waste, it is considered intermediate or low-level waste by some scientists - if it is high-level waste and we ban it, then obviously we've got a problem there. This bill deals primarily with the waste created by nuclear reactors . There may be an area here of omission, if you will, that needs to be considered and dealt with, so I don 't really have a good answer for you on that. MR. DEPUTY CHAIRMAN: Are there any further questions? Mr. Lecuyer. HON. G. LECUYER: Well, Mr.

Robbins, you've raised a number of questions and just be way of explanation, you have to understand that I'm not in a position to provide the answers here . I can only seek clarification and I will have to limit my comments to that. But my question is: Was it your thought that if there were eventually to be - and I believe it links up to the question asked by Mrs. Carstairs - underground waste disposal somewhere in Canada, would it be your understanding then that the province could prevent transportation to that site across Manitoba's territory? MR. W.

ROBBINS: Yes, we are saying that we would be opposed to the movement, shipments, if you will, of high-level radioactive waste through this province . That is correct. 144 HON. G. LECUYER: I thank you. MR. DEPUTY CHAIRMAN: Mr. Ernst . MR. J. ERNST: Thank you, Mr. Chairman. At the delegation, we have obtained from Legislative Counsel a legal opinion that indicates that this act cannot be enforced upon Atomic Energy of Canada. If that's the case .. . A MEMBER: I can't hear. MR. J. ERNST: Sorry, can you not hear? MR. DEPUTY CHAIRMAN: Perhaps if you could repeat your question, Mr. Ernst. MR. J. ERNST: Sorry, Mr.

Chairman. Can you hear now? Mr. Robbins, we have, as I indicated earlier, a legal opinion from Legislative Counsel that indicates this act cannot be enforced on Atomic Energy of Canada. You mentioned something at the beginning of varying legal opinions. The legal opinion from Legislative Counsel is that the act cannot be enforced upon Atomic Energy of Canada. Would you care to comment on that? MR. W.

ROBBINS: Once again, I was pointing out that some legal opinions we have is that there are grey areas and that they deal in the areas of environment, natural resources, tourism and recreation, health and safety, and transportation, among others, and that the province does have a right to protect its citizens in those areas. I would imagine - I'm not a lawyer and I cannot picture the scenario of what would happen if this bill were ever tested - but I would imagine those areas I mentioned would certainly become bones of contention and should. So it's sort of a black and white; it cannot be enforced.

I don't think you'd want to put it in those terms, sir. I think it's preferable to say that it may never come to that point, and hopefully it won't, but if it does, it would seem to us that there are legal counsels around who believe that the province does indeed have some flexibility in this particular act. That's the best answer I can give you, sir. MR. J. ERNST: If, in fact, the legal opinion from Legislative Counsel that it cannot be enforced against AECL is true or comes to pass or is fact, are you aware of any other significant creator of a nuclear problem, you having that broad experience. MR. W.

ROBBINS: Well, I think it becomes a political issue at that point, sir. If the Federal Government attempts to muscle in on Manitoba with this bill on the statutes, on the books, then the political issue surfaces, and at that point the people of Manitoba, I suspect, will make their voices known. I personally can't imagine the Government of Canada attempting to force itself onto the Province of Manitoba. Maybe I'm naive, but I can't imagine that happening with this bill on the books, because this is a clear message to the Government of Canada, whichever party

Wednesday, 15 July, 1987 it happens to be, that Manitoba simply will not tolerate this kind of facility . That's a moral and political position . I think that would become the major issue rather than the legalities and the jurisdictional issue within the bill, if you want me to see what I'm saying . MR. J. ERNST: Thank you, Mr. Robbins , but you didn 't answer my question . Are you aware of any other generator of nuclear material? MR. W. ROBBINS: I'm not sure what you mean by generator, sir. MR. J. ERNST: Well, we're talking about producer.

Who else is in the nuclear business that would create nuclear waste , high-level radioactive nuclear waste in Manitoba, besides Atomic Energy of Canada . MR. W. ROBBINS: I'm not sure that there are in Manitoba, although there may be some research waste produced here; that's possible , very small quantities that could be classified as high level, but there are other producers of waste outside of Manitoba and we're concerned about them, too, sir.

I know that people have an eye on this province from other places as a potential repository, and I think that one of the attractive things about this bill is it would send a message to those individuals and those countries as well. MR. DEPUTY CHAIRMAN: Are there any further questions for Mr. Robbins? Mr. Kovnats . MR. A. KOVNATS: Thank you. Mr. Robbins, can you advise, to your knowledge, who else other than Atomic Energy of Canada, stationed at Pinawa, would want to store nuclear waste, high­ level nuclear waste in Manitoba? MR. W. ROBBINS: Who might want to? MR. A. KOVNATS: Yes.

You just mentioned that there were others . MR. W. ROBBINS: Well, there are many countries which either have unsuitable kinds of situations for a nuclear waste or there are countries which are running into such political controversy about this particular area that they might move in this direction. For example, the United States Government , all 50 governors are opposed to nuclear waste depositories in their states . The entire United States program for high-level nuclear waste is completely bogged down. So that would be one possible country that might be interested in that particular option.

I would imagine the earthquake-ridden countries such as Japan could be interested . Don't forget that Atomic Energy of Canada Limited is a commercial oriented organization which is under a mandate to sell its services and its products. It has moved from what you might characterize as a national research laboratory to basically a commercial operation . So, in the light of statements from high-level officials in Ottawa over the years which have expressed an 145 interest in Canada taking nuclear waste from foreign countries , we're not just idly speculating over this . These statements have been made .

There is interest althou gh it's not the policy of the Government of Canada at this point. Those statements have been made. There are people in this country who, for commercial purposes, are intereste d in the idea , at any rate, of taking nuclear waste from other countries. I have named two countries that might be interested. I can't give you ' any documents that suggest that at this point they are, but I can tell you that in the case of the United States the probability of the U.S. Government ever achieving a nuclear waste repository is becoming almost nil.

As you well know, I suspect the United States Governme nt Department of Energy is working very closely with Atomic Energy of Canada at Pinawa on its research . MR. A. KOVNATS: Mr. Robbins , would you suggest or would you agree that this bill does not allow Manitoba to accept nuclear waste from any other jur isdictio n other than from their own; inasmuch that's what I believe this bill leads us to believe and I think that it would not be right of us to think that or even threaten that other jurisdictions will be depositing, storing or disposing of nuclear waste in Manitoba. MR. W. ROBBINS: I agree with you , Mr.

Kovnats . That is the intent of this bill, it's preventative , and any foreign country that might entertain the idea of moving toward a nuclear repository or making a deal with AECL or the Government of Canada to do so with regard to Manitoba would be confronted at least with this bill. MR. A. KOVNATS: That's fair enough. Thank you . MR. DEPUTY CHAIRMAN: Seeing no further questions , thank you, Mr. Robbins . We have another presentation on this bill. It's Mr. Frech from Atomic Energy of Canada Ltd. MR. E. FRECH: Mr. Chairman, it's our Vice-President for Waste Management of the Atomic Energy of Canada Ltd .

Research Company, Dr. Bill Hancox , who 'll be making the presentation . Would you hear him? MR. DEPUTY CHAIRMAN: Sure. Dr. Hancox . DR. W. HANCOX: Mr. Chairman, members of the Legislature , thank you very much for inviting me to appear before you this evening to comment on behalf of Atomic Energy of Canada on Bill 28. As you know , AECL operates the Whiteshell Nuclear Research Establishment near Pinawa and the Underground Research Laboratory near Lac du Bonnet. I think also , as you know, we have the national mandate to develop the peaceful uses of nuc lear energy.

As part of that mandate, we are developing technology for the safe, permanent disposal of high-level nuclear waste. I want to emphasize that we are not involved in the disposal of high- level nuclear waste in Manitoba, nor are we invo lved in the construction of disposal faci lities in this province . We do have a number of concerns about Bill 28. First , it appears to us unnecessary at this time . Second,

Wednesday, 15 July, 19 87 it appears to prejudge the technology for disposal that is being developed by AECL Third, it prohibits the storage of out-of-province high-level nuclear waste, and we believe that this could ad versely affect future commercial developments in Mani toba. Fina lly, it establishes a political climate detrimental to the nuclear industry in Manitoba. First, let me say something further about the need for Bill 28. As I've already mentioned, AECL does not have a manda te to disp ose of high-level nuclear radioactive waste.

Our mandate from the Government of Canada is to develop the disposal technology and to assess its safety. Where, when and even if the technology will be implemented is not AECL's decision. Four successive Federal Ministers of Energy have stated that it is not the intention of the Government of Canada or AECL to convert our Undergrou nd Research Laboratory near Lac du Bonnet into a waste disposal facility, nor is it the intention to establish a nuclear waste disposal site anywhere in the province.

We have leased land from Manitoba for 20 years to carry out research at the Undergrou nd Research Laboratory; also, we have other permits and leases to study groundw ater flow in the region surrounding the laboratory. As a condition of these leases and permits, we have agreed not to use or place any nuclear waste on or under the land in qu estion. The Manitoba Government monitors our activities to ensure that we comply with these provisions and with other relevant Manitoba laws and regulations.

The electrical utilities - New Brunswick Electric Power Commission, Hydro Quebec and principally Ontario Hydro, who produce the high-level nuclear waste today - are responsible for its disposal. They are responsible, in fact, for its overall management. Our initial estimates indicate that a capital investment of about $1 billion will be required to build a high-level waste packaging and disposal facility and that a work force of about 600 would be required for 30 to 40 years to operate the facility. The monies required to pay for disposal are today being collected as part of the electricity charged to consumers.

This amounts to about 0.5 percent of the monthly electricity bill. Once the safety of the disposal technology has been established, we anticipa te that communities will find having such a facility in fact an attractive prospect. Thus, even if Manitoba wanted to host such a facility, it seems to us highly unlik ely that the provinc es making the investment would agree.

Bill 28 does not prevent us from doing the research needed to complete the development of the technology for the safe permanent disposal of high-level nuclear waste, and I think this was the intention of the government drafters of the bill, but it nevertheless will have a negative impact on our work. We believe that the bill prejudges the di sposal technology that AECL is developing.

The wording of the bill implies that the Manitoba Government has already decided that the disposal technology will never be safe enough to implement. lt does so even though the research is not yet complete and the disposal concept has yet to be reviewed by technical experts outside AECL, by environmental agencies and by the general public. To avoid such a prejudgment, a

preamble to the bill could be added to clearly indicate that the Government of Manitoba is not intending to judge the 146 acceptability of the technology in putting thi s bill forward. Let me turn briefly to the storage restrictions provided by the bill. The bill prohibits the storage of high-level nuclear waste originating outside the province for more than seven days. We understand the government's desire to prevent permanent disposal even though we believe, as I said, it is unnecessary to do so at this time.

However, storage is a temporary arrangement in which the waste is constantly monitored and which could be carried on under special conditions and regulations established by the province to meet its objectives. We have, in fact, stored high-level nuclear waste at the Whiteshell Laboratory since 1965 and there have been no releases to the environment. In fact, these wastes are stored in a much more secure fashion than are most toxic chemical wastes. The prohibition of such storage will not have any immediate effect on the activities at the Whiteshell Laborator y.

However, we believe that it could constrain the development of new commercial opportunities in Manitoba with an associated loss of jobs and revenues to the province. For example, as already has been noted, one of the new technologies that we are marketing is an inherently safe small reactor called the Slowpoke Energy System. The Slowpoke Energy System is the leading edge of a new low temperature district-heating technology, and is attracting wide interest from leaders in innovative energy use and conservation practices.

About 20 people are now employed at the Whiteshell Laboratory to develop and demonstrate this new technology. This commercial opportunity for Manitoba, we believe, is jeopardized by Bi11 28. lt would prohibit us from storing used fuel from Slowpoke reactors located outside Manitoba.

If we are not able to use facilities that already exist at the Whiteshell Laboratory for the few dozen used fuel assemblies that will be involved, we will duplicate those facilities elsewhere at additional cost. lt is likely that the commercial operation will then be attracted away from Manitoba, costing Manitoba not only the jobs that are involved, but the chance to be at the forefront of new technology that could lead to other benefits. These flow not only to the Whiteshell Labor atory, but to Manitoba consulting engineering firms who are now working with us on these new district leading concepts.

Other future commercial activities could be similarily affected. Each time there is such an impact, jobs that would have been created in Manitoba will be created elsewhere. Let me say something briefly about the political climate that the bill creates. Our final concern is that Bill 28 establishes a political climate in Manitoba that is detrimental to the nuclear industry. Perhaps we have not done a very good job of communicating the benefits of the nuclear industry to Manitobans, but we are somewhat distressed that anyone would say that Manitoba derives no benefit from the nuclear industry.

We are a major employer in Eastern Manitoba, providing nearly 1, 000 highly-skilled and highly-paid jobs. Our company and the people we employ pay millions of dollars each year in Manitoba taxes. Accor ding to the Man itoba Bur eau of Statistics Economic Impa ct Model, our company's total contribution to the Gross Domestic Product of Manitoba

Wednesday, 15 July, 1987 is about $85 million annually, and the Jotal direct and induced employment is about 1,900 jobs. Our research on high-level nuclear waste could easily have been done in Ontario or Quebec . There is noth ing unique about the granite in Manitoba. As Manitobans, we strove to ensure that the work came here , and we succeeded in adding a $300 million program to the Whiteshell Laboratory . The result is that Manitoba is now home to a world-class technology for waste management, a technology that can also be applied to non-nuclear wastes.

This legislation , we believe, sets an unfortunate political tone that says the nuclear industry is not welcome in Manitoba . I suspect that fact will not go unnoticed elsewhere, and it could have unforeseen consequences for the Whiteshell Laboratory, especially as the trend is for an increasing share of AECL's research funding to come from Ontario rather than from the Federal Government. In conclusion , since the Whiteshell Nuclear Laboratory began operation in the early 1960's, the research activities have been conducted in an environmentally safe and responsible manner.

Overall, emissions to the environment have been maintained at a small fraction of those allowed under the stringent regulations of the Federal Government. We have established a modern community and provided employment in a place that was previously marginal farm land and unused wilderness. The Whiteshell Laboratory has established an international reputation for the excellence of its research on various aspects of nuclear safety , the safety of nuclear power plants, and for its research on high -level waste disposal.

There are no plans to build a disposal facility in Canada for several decades ; and, as I've said earlier, it is extremely doubtful that a site would be proposed in Manitoba . In any case, the people who live near proposed sights , wherever that might be, should have the right to make their own decisions based on their own understanding of the risks and the benefits . Bill 28, we believe, will not make Manitoba a safer place to live, and it may have some future side effects that will harm the province's economy .

I hope that this committee will consider , if not abandoning the bill all together, at least introducing amendments to clarify the issue of prejudgment of AECL 's disposal technology and to allow temporary storage under limits and conditions set by the province of waste produced outside Manitoba . Thank you very much, Mr. Chairman, for the opportunity to say these few words. I hope that they 'll have some impact on your deliberations. MR. DEPUTY CHAIRMAN: Are there any questions? Mr. Ernst. MR. J. ERNST: Dr.

Hancox, I asked the previous delegation, or put to him that we have legal opinion from Legislative Counsel that the bill would not be enforceable against your company . Have you received any legal opinion with regard to this bill or would you care to comment on that potent ial inability of this act to apply against your company? DR. W. HANCOX: I think our position is quite clear. Independent of the rights of the province to pass or 147 enforce this legislation, we would comply with its provisions. MRS. S.

CARSTAIRS: Doctor, I'd like to make reference, to your statement on page 4 with regard to the fact that more and more of your funding is coming from Ontario rather than the Federal Government. I would gather that is a direct result of Ontario Hydro 's need for a disposal facility? DR. W. HANCOX: No, it has nothing to do with their need for a disposal facility. It does, however, have to do with their need for the research that we're doing , both in the area of reactor safety, which is required for the continued operation of the plants in Ontario, and for the research that we're doing on the disposal concept . MRS.

S. CARSTAIRS: In this additional funding which you have been receiving from them, has there ever been, to your knowledge , any intimation that they would in fact like to have that laboratory located in the Province of Ontario so they could spend their money in the ir own province? DR. W. HANCOX: I assume , by laboratory, you're referring to a disposal facility? MRS. S. CARSTAIRS: Well, I'm, in fact, referring to any of the research that you're presently doing on behalf of the Ontario Government. DR. W.

HANCOX: No, as far as the research we're doing in Pinawa is concerned, there is no question about the location of the laboratory in terms of receiving funding from Ontario. It is not a factor . MR. DEPUTY CHAIRMAN: Mr. Downey. MR. J. DOWNEY: Mr. Chairman, a couple of questions to Dr. Hancox dealing basically with the overall concept or the overall concern that society has with nuclear power, nuclear waste. In a short comment, could Mr. Hancox give the committee some idea as to how the work they 're doing there will benefit the province and benefit the country as a whole?

I say this in the context that we are all so extremely concerned about a nuclear war and the fall-out, the impact, and the losses from that, Mr. Chairman . The work that you're doing out here in this particular area - I'm talking as a long-term safety measur e and finding out and helping the support of the opposition in nuclear impact - is there anything that you could indicate to us that would happen if you weren 't there , as far as provid ing of knowledge is concerned?

Are there any safety measures th at are being developed through the program there that would put us in a better position in this country, then if we didn 't have the knowledge that you're providing, if something like that were to happen? DR. W. HANCOX : I can give you two examples of where there are spinoffs from the research that we'd done in the nuclea r area . The first is that since the early 1940's, we have worked closely with radioactive materials, which

Wednesday, 15 July, 1987 I think everyone understands requires special care to protec t workers and the environment. The skills and technologies that we've developed to do that over the years , we are now applying to the handling of hazardous materials in the workplace , in areas outside the nuclear area. In fact, we've worked closely with the Department of Industry and Trade of this province in the area of occupational health. We're working today in advising companies in Manitoba how to handle hazardous materials in their workplace; that's one example.

The second is that the technology and the research that we've done for the disposal and management of radioactive wastes is being applied to other hazardous waste. The work that we've done, for example, in the field in the Whiteshell area , to develop techniques to characterize, to understand if you like, what happens underneath the surface in the way of movement of groundwater; the methods by which hazardous materials get into groundwater and are transported by groundwater, how they affect the environment.

These same techniques , which we have developed for radioactive materials, can and are being used to look at other toxic materials that are in the environment. We have been having discussions and working with the Manitoba Waste Management Corporation in this area, and are hoping to continue those types of activities. MR. J. DOWNEY: Mr. Chairman, there 's again, a major concern about the contact with nuclear material or fall­ out or the exposure to it. How many people have either had short-term or long-term health problems from the work that is taking place in the area in which you are responsible for. DR. W.

HANCOX: At the Whiteshell Laboratory, in fact , within AGEL, we have a health study under way. We have been monitoring the health of our employees since the very beginning. In all of those years since the 1940's, I think there has been only one documented case of an adverse health effect from radiation. Generally speaking, our employees are, if not healthier, as healthy as any emp loyees in any industry . MR. J.

DOWNEY : You're indicating that you've had one possible health situation or related health concern since 1948, dealing with what we would consider, in the public's mind, an extremely, extremely dangerous situation. We are now faced with a bill that you 've indicated will put some serious restrictions on an enhancement of the economic environment in that community, if not further advancing of an economic activity that could help the province. I ask you a question directly. Are you aware that this Legislature, at this Session, is passing a bill, Bill No. 47, that is, in fact , encouraging . .. MR.

DEPUTY CHAIRMAN: Mr. Downey, we're discussing Bill No. 28. Bill No. 47 has already been considered by committee. Could you please restrict your questions to Bill No. 28. MR. J. DOWNEY: Mr. Chairman, I can appreciate your sensitivity to the question of which I'm asking . MR. DEPUTY CHAIRMAN: Order, order please. 148 It's not a question of sensiti vit y, it's a question of the rules . The rules clearly state that questions shall be on the bill before the comm ittee and the presente r to the committee, so I'd ask the member to foll ow the rules; nothing more , nothing less. Thank you Mr. Downey. MR. J. DOWNEY : Mr.

Chairma n, I asked the question: Would the supporting of Bill 28 or Bill 47, if one were to measure the importance to the Province of Manitoba in the long-term economic viability of the province, which one would be of more importance; the one providing the support of the homosexual movement in the province, or the safe use of high-level radioactive MR. DEPUTY CHAIRMAN: Order please , Mr. Downey. That question is out of order, as I've already stated. MR. J. DOWNEY: Mr. Chairman . .. MR. DEPUTY CHAIRMAN: On a point of order, Mr. Downey? MR. J. DOWNEY: Well, Mr. Chairman , I would expect an answer.

I didn't mention the fact that Bill 47 could well be the bill that promotes AIDS in the province as well. MR. DEPUTY CHAIRMAN: Mr. Downey, your question was out of order. Your present comments are out of order. I would appreciate it if you would proceed in accordance with the rules, as I believe all members of the committee have done up to this point in time . I don't really see the need for getting into this type of abuse of the rules. Mr. Kovnats is next on the list. MR. A. KOVNATS: Has Mr. Downey completed his remarks? SOME HONOURABLE MEMBERS: Oh, oh! MR. DEPUTY CHAIRMAN: I recognized Mr. Kovnats. MR. A.

KOVNATS: Thank you very much. Mr. Chairman, to Dr. Hancox. How many deaths have been attributed to the development of nuclear energy and the control of nuclear waste in Canada since the end of World War II? DR. W. HANCOX: There are no deaths that I'm aware of. MR. A.

KOVNATS: Then the danger that we perceive with nuclear energy and nuclear waste is a real danger, to some extent; but what educational process has the Atomic Energy of Canada gone through to advise the people, particularly in the area of Pinawa, that the danger is not what is perceived by the people who have this fear of the danger of nuclear waste and nuclear energy? DR. W. HANCOX: Well, in terms of educating in the surrounding area, I guess the best education comes

Wednesday, 15 July, 1987 through those thousand people who work at our facility, who live in those surrounding communities. They're the best .testament that we have to the safety of our operations. In addition to that, we do meet on a regular basis with the municipal councils. We do speak to anyone who wishes to listen to us to describe what we're doing, the safety of our operations. MR. A. KOVNATS: Dr.

Hancox, does the Province of Manitoba, who owns the property in which you are performing your services - do they have the right to monitor the situation, to see that you are complying with the rules and regulations? DR. W. HANCOX: Today I believe that there is, in fact, an agreement between the Atomic Energy Control Board who have the federal responsibility tor regulating our operations. There is an agreement between the AECB and the provincial Department of the Environment and, collectively, they monitor our operations. They have full access to what we're doing. MR. A. KOVNATS: Dr.

Hancox, you've made mention of a Slowpoke reactor. These Slowpoke reactors are to provide electrical and heating energy in small remote communities, I would believe is the main purpose of these Slowpoke reactors. Can you tell me whether Slowpoke reactors are in service in any other area other than Manitoba at this time? DR. W. HANCOX: The Slowpoke technology is still in a developmental stage.

In fact, the demonstration unit has just started operation today in Pina wa, so it is not yet a commercial product. lt is, yes, intended for remote communities; that is the first place that we feel it would be economically attractive. However, we do not see it restricted simply to remote areas, but rather also to urban areas where the economics indicate that it can be competitive with heat from natural gas, and far more competitive than electrical heating. MR. A. KOVNATS: Are there any other sites or locations that have already signed up to use the Slowpoke reactor? DR. W.

HANCOX: We have discussions under way with a number of potential customers at the present time. MR. A. KOVNATS: Can the waste material from Slowpoke reactors be stored on site, where the Slowpoke reactors will be working? And is there any danger other than the same type of danger as storing this nuclear waste - not disposing, I don't want to get any - you know, make any - I want the difference being made there - but, is there any danger in storing this nuclear waste on site as it would be in storing nuclear waste on site at Pinawa? DR. W.

HANCOX: First, we see - and the customers that we're talking to today for the Slowpoke reactors are located in areas where they would not have the provisions to store the used fuel at those sites. I should also say that the lifetime of the fuel in the Slowpoke 149 reactor is about two-and-a-half to three years. So, there would be a time interval of about six years before the fuel would have to be removed from the reactor and brought back for storage purposes.

The amount of fuel is relatively small, not larger than what we already have at the facilities in Pinawa, and it would be stored under the same conditions with the same level of safety. MR. A. KOVNATS: Dr. Hancox - I lost my train of thought. But I was going to ask you about the recyc ling - that's exactly what it was - the recycling of the high­ level waste materials from the Slowpoke reactor. Can it be recycled and is the cost prohibitive at this point?

How far into the future can you see where the recycling, so that we don't have to store this waste material, where it can be recycled and reused, how far into the future can you see it taking place? DR. W. HANCOX: First, in terms of the Slowpoke, the amount of fuel is relatively small. lt will never be economic to recycle that fuel. In the case of the large power reactors, where the economics could possibly be there in the future, but are not today, the cost of uranium would have to increase by about a factor of three over today's price to make it economic.

We don't see that happening for several decades, at least to the middle of the next century. So, today it's not economic to recycle or to reprocess the fuel. We have no programs under way at the present time on reprocessing. MR. A. KOVNATS: Dr. Hancox, can you see somewhere in the future that the Slowpoke reactor or some reactor somewhat similar would replace the use of natural gas in the Province of Manitoba, on an economical basis? DR. W. HANCOX: I'm glad you added the qualifier. On an economic basis, yes, today.

In fact, I just heard on the radio yesterday that a steam plant was being shut down in Winnipeg that supplies heat to a number of buildings in the downtown core. I think in a different climate if simply the technical characteristics and the economic char acteristics of the Slowpoke were considered, it would be economic today to install the unit to heat those buildings. Of course, I think we would have to do something to convince the public that it was safe. We haven't achieved that yet. MR. A. KOVNATS: Dr.

Hancox, what precautions are in place today to transport nuclear waste throughout the Province of Manitoba safely? DR. W. HANCOX: There is very little nuclear material transported in the province today. We transport material at the Pinawa site with our own equipment, but not off of the site. Occasionally we have trucks come from Ontario, Ontario Hydro trucks that are especially equipped for the trans portat ion of waste. This technology is perfectly safe. There was a comment made earlier, I think by Mr. Robbins, that suggested that this was an accident any time that it was on the road.

I believe that's a gross over-statement of the situation. In fact, standing in this room, we're probably all receiv ing much more radiation from the building materials than we would receive from a passing truck with radioactive material.

Wednesday, 15 July, 1987 MR. A. KOVNATS: Thank you very much , Dr. Hancox . HON. G. LECUYER: Or. Hancox , in your reading and understanding of the bill in front of us, is it your understanding that it prohibits any of the ongo ing research activities , including the nuclear waste research activities ongoing by ACL in Manitoba? DR. W. HANCOX: No, it doesn 't. I believe, as I said earlier , the bill has been carefully framed to not interfere with the research program. HON. G.

LECUYER: Again, from your reading and understanding of this bill, is it your belief that it prohibits the storage of nuclear waste produced from your research facilities here in Manitoba? DR. W. HANCOX : No, it does not. HON. G. LECUYER: Then, Dr. Hancox , would you tell me what you mean when you say that this bill prejudges the results of the research technology and nuclear waste disposal? DR. W. HANCOX: I believe that the bill will be interpreted because it prohibits disposal, that it is in fact a prejudgment of the technolgy before the technology has been judged. HON. G.

LECUYER: But you're saying it doesn 't say that , the bill doesn 't state that? DR. W. HANCOX: No, the bill does not state that . HON. G. LECUYER: Dr. Hancox , a final question . Is it not , as I understand from your brief , your belief and your statement that it is your assumption that , for one , the bulk of the nuclear waste is produced as a result of electricity production at facilities in Ontario, Quebec and the Maritimes , and if I read again from your presentation, is it not also your belief that the permanent disposal of the nuclear waste produced in Canada would not be in Manitoba? DR. W.

HANCOX: That is correct . If you go back to the earliest statements when the program was first formed in 1978 , and then somewhat later in 1981, it was a clear intention of both the Federal Government and the Government of Ontario who formed this alliance that the disposal would eventually take place in Ontario . MR. DEPUTY CHAIRMAN: If there be no further questions, thank you, Or. Hancox. DR. W. HANCOX. Thank you. MR. DEPUTY CHAIRMAN: I have been advised that there may be a willingness on the part of the committee to deal with Bill No. 25 and Bill No. 28, the clause-by­ clause del iberati on .

Can I get some indication from the committee in regard to that? Mr. Findlay. MR. G. FINDLAY: Mr. Chairman, there are a number of people from outside of town here to make 150 presentations on Bill 65 and I think we should proc eed directly to hear them . HON. R. PENNER: I did speak to the Member for Lakeside and he indic ated tha t we cou ld take The Discriminatory Business Practices Act as a whole . I'm not a memb er of the committee , and that courtesy was extended, but if you want to withdraw it. We're talking about two minutes . MR.

DEPUTY CHAIRMAN: I believe the understanding was that it would not take any great length of time and would not overly inconvenience anyone making presentations . Mrs. Carstairs . MRS. S. CARSTAIRS: Mr. Chairman , I would also appreciate Bill No. 28 being dealt with , simply because I'm not allowed to remain in the room for any discussion of Bill No. 68. MR. DEPUTY CHAIRMAN: Can we then proceed with Bills 25 and 28 on the understanding that it will be dealt with forthwith? Okay, Bills 25 and 28. BILL NO. 25 - THE DISCRIMINATORY BUSINESS PRACTICES ACT MR.

CHAIRMAN: Bill No . 25, The Discriminatory Business Practices Act. Can we deal it with bill by bill perhaps? HON. R. PENNER: There are three minor amendments , one of them, in fact - the Member for River Heights' - deals with 3(3) and eliminates it because 3(3) and 3(6) are deeming provisions which are likely contrary to the Charter . I move THAT subsection 3(3) of Bill 25 be struck out. (French version) IL EST PROPOSE QUE le paragraphe 3(3) du projet do loi 25 solt supprime . MR. CHAIRMAN: Agreed. Pass . HON. R. PENNER: I move, Mr.

Chairperson, THAT subsection 3(6) of Bill 25 be struck out. (French version) IL EST PROPOSE que le paragraphe 3(6) du projet 25 solt supprime . MR. CHAIRMAN: Agreed . HON. R. PENNER: I move - and this is technical - THAT clause 19(1)(

d) be struck out and the following clause be substituted therefor : (

d) contravenes subsection 3(2), (4) or (5); or. (French version) IL EST PROPOSE QUE l'alinea 19(1)

d) soit supprime et remplace par ce qui suit :

Wednesday, 15 July, 1987

d) contrevient au p aragraph _e 3(2), (4) ou (5). MR. CHAIRMAN : Agreed . Pass. Bill, as amended - pass. MRS. S. CARSTAIRS: Mr. Chairman, unless I missed it, because we went too speedily, did we even in fact deal W!!h SE)C)ion 4? MR. CHAIRMAN: I'm sorry. I believe you 're correct, Mrs . Carstairs . That was just being pointed out. Perhaps we could deal with that by leave. (Agreed) HON. R. PENNER: I move THAT

section 4 of the bill be amended by striking out "shall offer" and substituting therefor "shall make reasonable efforts to offer ". (French version) IL EST PROPOSE QUE !'article 4 du projet de loi soil modifie par la suppression des mots " doit offrir" et leur remplacement par les mots "doit faire des efforts raisonnables pour offrir" . MRS. S. CARSTAIRS: Can I ask the Attorney -General for some clarification as to why we are not accepting the recommendation of the three groups that presented tonight, and not striking

section 4 in its entirety? HON. R. PENNER: Because I think that to remove it would create a situation where we would have no remedy to deal with persons who are in fact disadvantaged; and to attempt to enforce the bill in the way that was suggested would be contrary to our constitutional powers. It would be invalid. MRS. S. CARSTAIRS: Well, certainly if we deleted the whole thing we would not have to pay compensation. But why do we consider it, in Manitoba , to be contrary to our constitutional powers, when Ontario does not consider it to be contrary to their constitutional powers? HON. R.

PENNER: On the contrary, we discussed this very carefully with the Ontario officials, and they have drafted that bill precisely to be within their constitutional powers . MRS. S. CARSTAIRS: So the Attorney-General is saying, in fact, that there is no prohibition for a corporation, in Ontario, doing business with a country that is practising discriminatory practices toward Ontario citizens? HON. R. PENNER: That is correct . What is prohibited and, equally , our bill prohibits, is doing things within Manitoba with an intent to discriminate . MRS. S. CARSTAIRS: Thank you, Mr. Chairman. MR .

CHAIRMAN: Is there agreement on the amendment?

Section 4, as amended-pass. Once again, Bill No. 25, as amended, as a whole­ pass . Bill be reported. Thank you very much . BILL NO. 28 - THE HIGH-LEVEL RADIOACTIVE WASTE ACT MR. CHAIRMAN: The next bill is Bill No. 28. Proceeding bill by bill, once again , I believe there 's one amendment. 151 Mr. Kovnats. MR. A. KOVNATS: There were some presentations made as to whether there was any legal right of the province to pass a bill concerning jurisdiction that comes under the federal jurisdiction .

If that is the case , and the only one that could be involved would be the Atomic Energy of Canada at Pinawa , would the Minister consider at this time withdrawing the bill? HON. G. LECUYER: Mr. Chairman, no. It is clearly established, and did so again with the questions I put awhile ago , the purpose and intent of the bill is not to inhibit the research that's going on, but to prevent the permanent disposal of nuclear wastes in Manitoba .

There is no precedence established in law in terms of whether we can prevent or enforce this bill, because it will have to remain a moot point , whether the waste produced by the energy facilities of Ontario or Quebec or some of the Mar itime Provinces, or indeed for the benefit of the citizens of those provinces, are indeed wastes then that are fully under the authority of the Government of Canada, or whether they belong to those provinces. As I've said many times, with that moot poin t, we hope and state that we hope that it won't have to be tested. MR. CHAIRMAN: Is there any further discussion? Mrs. Carstairs.

MRS. S. CARSTAIRS: Yes, I have two questions . Does the Minister not feel that the development of the Slowpoke re~ctor, and certainly its viability as a MR. CHAIRMAN: Order please. I recognized Mrs . Carstairs . A MEMBER: I can't hear Mrs . Carstairs. MRS. S. CARSTAIRS: . . . its viability as a failed commodity for AECL , will that not be seriously restricted if, in fact, the disposal from that reactor could not be returned to the place where, in fact, it was creat ed? HON. G. LECUYER : Mr.

Chairman, if we're talking about disposal, surely the member is not under the impression - because nobody else is under that impression - that permanent nuclea r waste disposal facilities will be developed everywhere in Canada . If there is one , there will be only one and, therefore , the wastes produced by a Slowpoke reactor, if there is one in use in Manitoba, the bill does not prevent the storage of that waste in Manitoba , because we will assume responsibility for the waste we produce .

What it does prevent is the bringing back into Manitoba those wastes to store or dispose of in Manitoba, and there would be no need to do that , Mr. Chairman , if there is a disposal facility available elsewhere anyway.

Wednesday, 15 July, 1987 MRS. S. CARSTAIRS: Well, Mr. Chairman , we're not going to have a disposal, and perhaps I used the wrong word, and should have used "st orage ." But if we are going to build and develop a reactor here, which we already have, called a Slowpoke , we are then goi ng to sell it to the Northwest Territ ories , which does not have a storage facility . Is that development , and the sale, and the commercial evolution of that reactor, not going to be totally limited if, on selling that, we cannot say we will take the spent fuel back and store it in Manitoba? HON. G. LECUYER: Mr.

Chairman, if Manitoba, or any other province , for that matter, can store the nuclear wastes that they produce within their boundaries , generally near the facilities that produce them , why can it not be produced in the Northwest Territories, if that's where there are Slowpoke reactors? MRS. S. CARSTAIRS: But , in fact, Mr. Chairman , we don 't do that at the present time . We use ... HON. G. LECUYER: We have no Slowpoke reactors at the present time. MRS. S. CARSTAIRS: No, we use nuclear cobalt waste HON. G. LECUYER: Not high-level nuclear waste. MRS. S.

CARSTAIRS: Well it is certainly my understanding that we certainly do use high-level waste . HON. G. LECUYER: They're not high level. It's not considered high-level nuclear waste . MRS. S. CARSTAIRS: So the Minister is telling this House that there is no high-level medical waste being produced in the Province of Manitoba; is that what you're saying? HON. G. LECUYER: That is my understanding . MRS. S. CARSTAIRS: Well I've been given information to which the scientists have given me contrary information, so I'm at a loss for words. HON. G. LECUYER: Sorry, Mr. Chairman, even Dr.

Hancox did not contradict that awhile ago, when asked. MRS. S. CARSTAIRS: I did not ask Dr. Hancox if we were producing high-level medical waste in Manitoba . MR. CHAIRMAN: Are there any further questions or discussion? I believe there is one amendment on this bill. Mr. Lecuyer . HON. G. LECUYER: On page 2, Mr. Chairman, I move THAT clause (

c) of the defin ition of " dechet radioactif de haute activite " be amended by striking out the words "l'alinea

b) ou c)" and their replacement by the words "l' alinee

a) ou b)". Mr. Chairman, that's to make it the same as it is in the English version. 152 (French version) IL EST PROPOSE QUE l'alinea

c) de la defini tion de " dechet radioactif de haute acti vite " soil modifie par la suppression de "l'alinea

b) oLi c)" et son remplacemen t par " l'alinea

a) our b)". MR. CHAIRMAN: Agreed? (Agreed) Any further discussion on the bill? Bill as a whole , as amended-pass . BILL NO. 65 - THE SURFACE RIGHTS ACT MR. DEPUTY CHAIRMAN: Okay, the next bill before the committee for public presentation is Bill No. 65. There was some reference made to individuals being from out of town on Bill No. 65. I'm wondering if we might hear those who are from out of town, given the lateness of the hour, and then hear from others afterwards. Is there anyone present in the committee wishing to present on Bill 65 who is from out of town and would like to make a presentation now? Mr. Downey.

MR. J. DOWNEY: Mr. Chairman, I agree we should hear the out of town members and I believe the first one that's up, Mr. Rene McNeil!, solicitor for the Manitoba Surface Rights Association , is from out of town, and we should just proceed to hear him . MR. DEPUTY CHAIRMAN: Perhaps if we can deal with Mr. McNeill's presentation. If there's anyone else from out of town, please, could they contact the Clerk of Committees on my right and we'll rearrange the order in accordance with that. Mr. McNeil!, solicitor for the Manitoba Surface Rights Association . Please proceed . MR. R. McNEILL: Mr.

Chairman , and honourable members . I did bring some copies of our brief in, but I didn't have the opportunity to hand them to the Clerk. Should I do so at this time? Mr. Chairman, the Manitoba Surface Rights Association is an association of individuals consisting mostly of farmers who live in or about the area in southwestern Manitoba, which is also the home of the Manitoba oil industry . This association has been very active in voicing the concerns of landowners who pay host to the variety of installations required by the oil industry.

This same association presented an extensive brief to the Commission of Inquiry into surface rights in Manitoba, which resulted in a report by Ross Nugent to the Honourable Wilson Parasiuk, then Minister of Energy and Mines in 1982. That detailed brief outlines the fundamental concerns of the landowners , and still accurately describes many of the difficulties and problems landowners face when dealing with operators who require surface rights.

The Report of Ross Nugent was instrumental in bringing into being The Surface Rights Act , which was assented to on July 22, 1983, and proclaimed in force on August 9, 1983. This act contained the potential for

Wednesday, 15 July, 1987 solving many of the matters at issue between landowners and operators and did, in fact, result in almost all surface leases being reviewed and, in most instances, compensation for existing well-sites and roadways was increased. As a result of that legislation, most landowners soon requested a review of existing surface rentals and some companies readily negotiated settlements which brought surface rentals into line with rentals being paid in Saskatchewan and Alberta for similar operations.

Other companies chose to have protracted negotiations and eventually it became necessary to file applications for hearings under The Surface Rights Act . Various hearings took place throughout the last three years, and unfortunately, the results of the hearings were almost always disappointing to the landowner . A few appeals were filed but never proceeded with as it became quickly apparent that appeal procedures were exceedingly difficult and expensive. During these same years , the Manitoba oil industry was also experiencing a boom.

New discoveries were being made in the Virden area and a whole new oil field was developed in the Waskada area. Again, some companies made a point of offering fair and reasonable compensations and numerous leases were negotiated and settled between the parties. MR. DEPUTY CHAIRMAN: Excuse me. Mr. Dolin on a point of order. MR. M. DOLIN: I don't want to demean the brief, but I notice it is 22 pages long and it seems that you are reading it word for word. I'm wondering if perhaps, we could go through the brief and you could point out cogent points. We're going to be here quite awhile if you read it to us.

Now I don't know what other members feel about it, I'm willing to stay here for it, but I'm wondering if you could just isolate the points of importance? I'm easy on it, but I think it would be easier on all of us if we didn't read 22 pages. MR. DEPUTY CHAIRMAN: Mr. Findlay on the point of order. MR. G. FINDLAY: Mr. Chairman, I've never heard of this procedure being used before, where a citizen is prevented from making his report as he saw fit to report it. I would ask the member to withdraw those comments immediately. MR. M. DOLIN: I'm doing nothing of the kind, Mr. Findlay .

I am asking if it would be possible, on the point of order - I don't like to be accused of it - I asked if it would be helpful. Certainly to me and other members, and I'm easy on this, but I am suggesting if it were possible rather than reading 22 pages, if you could pick up points of most importance and we could deal with those and the recommendations. If you feel you have to read the whole 22 pages, I am perfectly willing to sit and listen. MR. DEPUTY CHAIRMAN: On the point of order, we do not have set procedures in terms of limitations on members of the public wishing to make a presentation.

It is basically up to them. If Mr. McNeil! wishes to submit 153 this and summarize it or submit it as a written brief, that is possible. If he wishes to read it, in its entirety, it's possible , so I believe it's really up to Mr. McNeil!. Mr. McNeil!, you may proceed. MR. R. McNEILL: Mr. Chairman, I do choose to go th rough the brief rather detailed, because I think one of the basic problems that landowners have faced, in this particular type of legislation, is a fundamental failing of parties to understand the theories that are behind this type of legislation.

I find that most people who we deal with are quite unfamiliar with it, and I think it does require some discussion in detail. Specifically, the areas of greatest concern which still cause the most problems in matters of surface rights are as follows: Firstly, the annual compensation rates for well sites developed prior to the coming into force of The Surface Rights Act in most cases do not equal the compensations being paid for similar sites developed subsequent to The Surface Rights Act and the compensations being paid in Alberta and Saskatchewan.

And I might add that, right now , we are looking at compensations in $2,000 per year area for annual surface rentals on a single well site; and compensations that are currently being awarded by the board are considerably below that . Secondly, some companies consistently offer compensations at levels far below what is generally accepted at reasonable levels of compensation. Thirdly, and probably most aggravating to the landowners, are that the hearings are too long, too complicated, too intimidating and too expensive for landowners.

It's the position of the Manitoba Surface Rights Association that the board has failed to carry out the purposes of The Surface Rights Act as defined in

section 2. It failed because it made awards that were inconsistent and often far below negotiated settlements for similar sites. It failed because it had not effectively resolved disputes between operators and owners concerning new rights of entry. It failed because the cost of hearings became too much for landowners to bear, and they quickly developed a reluctance to appear before the board. Some of the examples of the board 's failure are as follows: The board consistently refuses to award costs of the hearings to the landowners.

Accordingly, after deducting the cost of the hearing, a landowner will never be fully compensated for his losses . I'd like to draw to the committee's attention to the fact that in Saskatchewan and Alberta, costs are usually awarded to the landowner when they appear. Another example, the board conducts its hearings in a formal, adversarial manner much like a court, and allows extensive cross-examination of witnesses. This formal procedure makes it necessary to have lawyers present to conduct the hearings and defend the landowners' positions.

Again, we reiterate that the hearings become too long , too complicated, too intimidating and too expensive, and again I digress . One of the favourite tactics of the operators is to insist that the onus of proof of the compensation is on the owner. Now, to us, this doesn't seem fair because the owner doesn 't

Wednesday, 15 July, 1987 have any opportunity to deny the operator the right to appear on the land. Accordingly, the landowner needs assistance and should have the opportunity to have assistance , and the costs should be paid for. Another example of the board's failure is that the board imposes its own

interpretation on the terminology in the act, without reference to accepted

interpretations in Saskatchewan and Alberta. Accordingly, even though farmers in Saskatchewan consistently receive $300 to $500 per well site annually for adverse effect, the Manitoba board refuses to make awards for adverse effect. Also, the board rules that it does not have jurisdiction to look at comparable awards , and accordingly , many of its awards were not consistent with similar cases in Manitoba, Alberta and Saskatchewan .

It should be noted here that compensation awards should not be much different in neighbouring Saskatchewan because their agricultural industry is much the same as in Manitoba and our act was modelled after theirs . The failure of the Manitoba Surface Rights Board to gain the confidence of landowners and to provide them with fair and equitable decisions has left the landowner in a vulnerable position when it comes to dealing with the oil industry.

When the oil industry comes calling for rights to enter and operate on a farmer 's land , a farmer is suddenly confronted with an experienced land representative who is familiar with all the effective pitches and who is there for one purpose only; to obtain a lease of the surface rights on the most favourable terms and at the least expense for his client. We must always remember that the landowner cannot refuse to deal with this request by the oil industry for surface rights. He must either negotiate a deal or appear before the Surface Rights Board. I just might digress at this moment as well too.

At the present time, I am conducting some negotiations on behalf of a landowner, who is presently dealing with the Manitoba Oil and Gas Corporation . At this time , we are conducting negotiations and one of the statements that has been made to me by the land representative was the fact that when I commented on the compensation that was being offered , it was , well have you advised your client that the compensation that he may receive before the board may be less .

In response to that, I suggested that the land representative should take the position that the Manitoba Oil and Gas Corporation should set an example in this industry, as it is perceived to be acting as a Crown corporation and acting on the authority of the Province of Manitoba. Accordingly, we feel that the Manitoba Oil and Gas Corporation should be setting the precedent and should be taking a leadership role in establishing surface rentals in Manitoba .

At this point, the negotiations are still contin uin g, but I feel and my client feels that we could be in an uncomfortable situation if we had to eventually appear before the Surface Rights Board on this matter. So I would urge the committee and I would urge those members that have the conduct of the Manitoba Oil and Gas Corporation, to urge them to take a leadership role in these issues so that these matters do not have to end up before the Surface Rights Board .

Cont inuing on then, the Manitoba Surface Rights Association feels that the function of the Surface Rights 154 Board is not to just sit as judge and jury and to make a decis ion between opposi ng positions. That's only one of the functions set out in

section 2 of the act. Our association feels that the board should be able to bring its expertise to bear in surface rights matt ers , and here is where we feel that the board has failed the most. Many of the landowner s, after appearing before the board , have come away with the feeling that the board members do not have a comprehensive understanding of agricultural economics, and without this knowledge, they are unable to appreciate the often detailed and complex evidence presented before them.

In many of the hearings, a mere lack of questions by the board indicates a lack of understanding of the issues that are put before them. I just might, at this point, show the committee a typical report prepared, in this particular case, by an expert witness on behalf of Chevron Canada Resources Ltd . It's a report consisting of numerous pages , complete with photographs, calculations and theoretical positions on behalf of the oil industry. This type of report is very complex and needs evaluation.

A landowner cannot be expected to have the type of technical expertise available to present an opposite position on this type of material. We therefore feel that the Manitoba Surface Rights Board should have the expertise, either in itself or at its disposal , to be able to consult, to be able to evaluate this type of information. It could be argued that the landowner could also call his own expert witnesses, but at this point in time the board has not been allowing costs, and accordingly, landowners just cannot afford to hire the types of experts that are required to present the evidence .

The Manitoba Surface Rights Association therefore feels that this government must see that, in future, the Manitoba Surface Rights Act carries out all of the purpose of the act as outlined in

section 2 and must see that the board produces results which are just and equitable . In 1985, after hearings which produced results which were less than satisfactory to the landowners, the Manitoba Surface Rights Association met with the Executive Director of the Surface Rights Board . It quickly became apparent that the board's position was adverse in interest to that of the landowner. By that, I mean, after certain hearings, we had discussions and we discovered that the board was interpreting a particular

section of the act concerning adverse effect differently than it is being interpreted in Saskatchewan . The wording of that particular part of the act is exactly the same as in Saskatchewan, and yet in Saskatchewan, awards were being made for adverse effect of $300 to $500, and in Manitoba, they were not. Despite our protests, we were unable to get a satisfactory understanding of why the board took this divergent approach. The Manitoba Surface Rights Association reviewed the act, subsequent to those discussions, and submitted a brief proposing several amendments in 1985.

It is apparent that the government has decided not to follow any of these suggested amendments. At the annual meeting with the Manitoba Surface Rights Association in 1987, with the Honourable Minister of Municipal Affairs present , the Manitoba Surface Rights Association passed five resolutions calling for,

Wednesday, 15 July, 1987 No. 1, comparable settlements to be used as primary evidence io determining just and equitable levels of c.ompensation ; No. 2, cost to be awarded to landown ers; No. 3, fines to be assesse d on operators who fail to report spills; No. 4, the return of the board to southwest Manitoba; and No. 5, an investigation of surface rights ll)atters . The Surface Rights Association, various individuals, and honourable members of the Opposition have raised these issues with the Minister of Municipal Affairs. In response , the Honouraqle Minister has introduced Bill No. 65 .

What follows is the response to his proposals. With that background position, Mr. Cha irman, the first matter is the matter of appeals. I will summarize this particular one . We are in agreement that the matter of appeals should be changed so that appeals are , on matters of law, to the Court of Appeal only. The second matter in our brief is the proposed amendments to

section 26(1) which are the sections dealing with compensation. The Manitoba Surface Rights Association believes that the Surface Rights Board should have the widest scope possible to consider all factors in determiriing compensation for surface rights . Unfortunately, the board seems to be interpreting

section 26 in a manner which would limit its right to receive what landowners regard as pertinent information in determining compensation . It is the belief of the Manitoba Surface Rights Association that the government did not intend this

section to be restrictive. The proposal to add an item to section (1) to state that the board shall consider similar negotiated settlements is a welcome addition to the act. Many of the areas of compensation, such as nuisance, require the board to make an estimate of compensation based on reasonableness , rather than on scientific data.

Accordingly, the association feels that one of the most significant reference points in determining what is reasonable is the compensation arrived at by operators and landowners in similar cases in Manitoba , Saskatchewan and Alberta; consistent and adequate where more awards will remove much of the friction between operators and landowners . I wish to emphasize, Mr. Chairman, that the awards must be consistent to cross the western Prairie Provinces.

The matters of surface rights do not differ that greatly; certainly agriculture does not differ that greatly, and it is not reasonable to suggest that farmers across the border into Saskatchewan should be receiving compensation at levels different than their neighbours in Manitoba, particularly in view of the fact that our act is modelled after theirs . The proposal to amend

section 26(1) is of significant concern to the Manitoba Surface Rights Association. We are of the view that the addition of the words "before allowance of surface rights ," will unduly restrict the scope of the board in awarding compensation to the landowners . We believe that the board will be inclined to use this definition to tie the value of the land to a per-acre value of the remaining acres on the farm. The association is of the view that this is not a fair and equitable definition .

We must remember that the operator, in its sole discretion, chooses the location and the configuration of the land that is taken for its operation . For those of you who are not familiar with well sites , well site is 15~ usually in the middle of a 40-acre legal subdivision with a road comi ng in approximately one-quarter mile long . Accordingly, the Manitoba Surface Rights Associa tion is of the view that the compensation to be paid for the taking of this portion should be higher than the per acre value . This concern is recognized in

section 25 of the Alber ta Act, in that the board may consider both "the amount of land granted to the operator might be expected to realize if sold in the open market by a willing seller to a willing buyer on the date the right of entry was made ," and the per acre value. This defnition is more accurate and directs the board to consider the size, shape and location of the property that is being taken by the operator.

This follows common sense in that an owner would not want to sell a small , irregularly­ shaped parcel of land out of his farm acreage at the same price as he might be willing to sell the total farm on a per acre basis if he was a w illing seller. In this regard, the Manitoba Surface Rights Association made this proposal in 1985. The proposed amendments before this Legislature should be changed to recognize the difficulties that the board in Alb erta has already experienced. They found it necessary to make the changes. We feel that Manitoba should also consider them .

One of the problems in surface rights we find is the tendency to always want to draw similar conclusions from expropriation law; but in expropriation law, things were being taken for a public purpose and that is not the case here. We are very strongly of the view then that the government should reconsider this proposal and consider a definition, similar to the one in Alberta . One area of significant concern is sect ion 1(

e) which outlines that the board is to consider the adverse effect caused by the right of entry to the rem11ining land by reason of severence . The proposed amendments have the words " if any " added to this subsection . These added words would not appear to change the meaning of the section, but there has been a significant difference of opinion between the landowners and the board as to the defini tion of the word severence. Apparently the board has taken the opinion that severence implies to the complete severing of a field into two separate fields .

Accordingly , in most instances , they have ruled that severence is not in effect and that no award of compensation has been made for adverse effect. This

interpretation is contrary to the

interpretations in Alberta and Saskatchewan where the terminology first originated. The

interpretation of this clause by the Manitoba Surface Rights Association and the history of this terminology states that severence is a factor in every case where there is an above-grou nd installation. The degree of severence, will, however, vary in each case, but it is always there in the case of above-ground installations because the installa tion interfer es with the use of the remaining lands and requires the farmer to adjust his use of the remaining lands to take into account the installation .

Again , it is difficult to estimate the adverse effect, with any degree of certainty , as it is not a strictly scientifi c determination. The Surf ace Rights Board in Saskatchewan consistently makes awards of adverse effect, but this element has been lacking in Manitoba and consequently, is one of the main reasons why compensation in Manitoba has been lower than in the neighbouring Province of Saskatchewan . The definition in Alberta is somewhat

Wednesd ay, 15 July, 1987 different because the terminology of adverse effect is broader and includes some of the other items listed separately in

section 26 of the Manitoba Act. To rectify this situation, we would suggest that a definition be inserted into the act such as the following: "severence" means the taking of the portion of the lands acquir ed by the operator . This particular subsection has been one of the most misunderstood su bsections in determining compensa tion. The Manitoba Surface Rights Association feels that this is one of the main reasons why the Manitoba Surface Rights Board has failed to bring levels of compensation into line with negotiated settlements and comparable awards in Saskatchewan. Further in

section 26, the proposed amendments delete subsection (

j) which states that the board may consider "such other factors as the board deems proper, relevant and applicable." This deletion is not consistent with the philosophy that the board should have the right to consider whatever material it feels is relevant. lt could be argued that subs ection (

h) contains a duplication in this area because the board is specifically allowed to consider "any other relevant matter that may be peculiar to each case." However, this is a restrictive clause in that relevant matters must be peculiar to that case. We believe that the board should be able to consider any relevant material, even though they are not peculiar to tha t particular case. According ly, we would recommend that subsection (

j) not be deleted or that the restrictive portion of subsection (

h) be deleted. I might add that in my brief look at the Saskatchewan Act, it still has a similar

section (

j) in their act, and they seem to be doing fine in Saskatchewan. lt is also noted that subsection (

g) of the existing subsection 26 (1) is also to be deleted. The Manitoba Surface Rights Association is of the view that this subsection allows the board to consider the different uses of the land by the operator when assessing compensation. This is a useful factor, because it makes the operator concerned with the upkeep, maintenance and aesthetic effect of its operations. For example, some operators have allowed some of their sites to become eyesores, in that they have allowed equipment to rust and deteriorate and have allowed junk to accumulate on the site.

This has a detrimental effect on the appearance of the farm and reduces the pride with which many farmers regard their farm operations. Accord ingly, the board should be able to take these factors into consideration. The deletion of this

section could imply that they are not directed to do so. The association is therefore of the view that this subsection should remain. Regarding the costs of hearing, the Manitoba Surface Rights Associa tion, in its brief to the Commission of Inquir y, stated that the operator should be responsible for paying the reasonable costs of the landowner in appearing before the board. The reason for this is that these costs would not be incurred, except that the owner is obligated to accept the operator to accommodate the objectives of the oil industry.

As matters of surface rights are not within the general purview and knowledge of the average farmer, it makes sense, that in order to achieve fairness, he will have to seek advice and assistance. 156 This advice and assistance helps him deal on an equal footing with the experienced land representatives. The experience of the landowners appearing before the Manitoba Surface Rights Board over the last three years is to find out that the board has refused to award costs. According ly, if a landowner were to receive fair compensation for these rights, he would always be in a loss position because of the cost factor.

Mr. Chairman, I would wish you to note that most often we are only dealing with differences of compensation of a few hundred dollars, so if costs are not awarded, the purpose of going before the board would be defeated. The Honourable Minister has decided to introduce a formula concept to assist the board in determining when costs should be awarded. Our association is of the view that this formula concept will not be effective. We believe that the onus should be on the board to determine what costs are reasonable, and that they have been incurred with a view to advancing the position of the landowner.

Whenever this is the case, costs should always be awarded to the landowner. The association is also concerned that this concept will not work where the amount of compensation is only one of the issues in dispute between the parties. We suspect that the Minister is considering this approach because the board is concerned that if costs are always awar ded, then every farmer will automatically take his case to the board. We would suggest that nothing could be further from the truth.

First of all, if the costs are legitimate, the farmer will not end up with anything more in his pocket, so he won't be appearing before the board to profit from an award of cost. Secondly, most farmers do not like appearing before the boards for a variety of reasons, and I've listed those in our brief. We are therefore of the opinion that there is already enough of an inherent deterrent to appearing before the board, so using costs as a deterrent is not necessary.

The concept of award ing costs to an owner does two things: it ensures that the owner will feel free to retain the necessary consultants to be on an equal footing to put his case before the board; and it ensures that the farmer does not have to deduct his costs from his award and will not therefore be fully compensated for the rights being obtained by the operator. Simply put, if costs are not awarded, farmers will not appear before the board and the whole purpose of The Surface Rights Act will be defeated, and we suspect just as the operators would like.

On matters of abandonment, we have two basic concerns: who is going to pay for the cost of the restoration and who is going to see that the restoration is completed? I'd like to digr ess for a moment here. We know that your intentions are to try to simpl