Manitoba Committee Hansard — 10 July 1985 (Statutory Regulations and Orders Committee, Sitting 5, 32nd Legislature, 4th Session)

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Manitoba — Debates (Hansard)

LEGISLATIVE ASSE MBLY OF MANITOBA THE STANDING COMMITTE E ON STATUTORY REGU LATIONS AND ORDERS Wednesday, 10 July, 1985 riME - 10:00 a.m. LOCATION - Winnipeg, Manitoba I:: HAIRMAN - Mr. C. Santos (Burrows) �TTENDANCE - QUORUM - 6 Members of the Committee present: Hon. Ms. Hemphill, Hon. Messrs. Kostyra and Penner Mess rs. Birt, Dow ney, Harper , Kovnats, Sant os, Steen and Corrin MATTERS UNDER DISCUSSION: Bill 3 -

An Act to amend The Vita l Statistics Act; Loi modifia nt la

loi sur les statistiq ues de l'etat civil. Bill 8 - The Amb ulance Servic es Act;

Loi sur les servi ces d'ambulance. Bill 16 - The Herita ge Resources Act;

Loi sur le patrim oi ne . Bill 18 -

An Act to amend The Highway Traffic Act; Loi modifia nt le code de la route. Bill 19 -

An Act to amend The Highway Traffic Act (2); Loi modifia nt le code de la route (2). MR. CHAIRMAN, C. Santos: Committee, please come to ord er. Before we rose last night, we deci ded to proceed accordin g to the order in which the bi lls appeared , clause- by-cla use. The Atto rne y-General. HON. R. PENNER: I would ask th at the following bi lls be dropp ed down on the list: No. 14, the Member for Fort Garr y advis es me tha t he needs a li ttle tim e to prepare some amendme nts he has in mind; No. 36, The Mor tage Dealers Act, can be dropp ed to the bottom; No. 55, the amend ment to The Liquor Control Act, I would like dr opped to the bottom; No. 58,

An Act to amend The Mortgage Act, I would ask be drop ped to the bottom - of course, you're going to have to have a lot of room at the bottom there, there is not much room at the top - and 85, The Healt h Services Insu rance Act (2), dr opped to the bottom . MR. CH AIRMAN: Is tha t agreed to by the members of the committee? The Member for Ar thur . MR. J. DOWNEY: A quest io n for clarifica tion, when the Mi nister says the y're dr opped to the botto m, does that mean that they'l l be dealt with at the latter part of the Session or is he intend ing to totally remove some of them from the . 10 9 HON. R.

PENNER: No no, I don't want to give any ind icatio n at this stage that I'm inte nding to totally remove. There are some, qu ite frankly, that I want some further cons iderat ion on, such as The Mortgage Act. We invite recommendati ons from Mr. Birt. We want his opinio n on the amend ments. MR. J. DOWNEY: Oka y. MR. CHAIRMAN: Is tha t clear now? We are drop pin g Bi lls No. 14, 36, 55, 58 and 85, accord ing to the order they appear, down to the bottom of the list. Si nce we have heard all presentat ions, we will now proceed clause- by-cla use. We'll start with Bill No. 3 at the top of the li st.

BILL 3 - THE VI TAL STATISTICS ACT; LA

LOI SUR LES STATIS TIQUES DE L'E TAT CIVI L MR. CHAIRMAN: Clause 1 . . . HON. R. PENNER: Could you go page- by-pa ge? MR. CHAIRMAN: We shall proceed page-by -page the n. Pages 1 to 4 were each read and passed .

Preamble- pass; Tit le- pass. Bil l be reporte d- pass. The next bill is Bil l No. 8. HON. R. PENNER: The Minis ter is not here. He should be very short ly. Could we just hold that until he comes? MR. CHAIRMAN: We'll drop it to the bottom of the list? MR. J. DOWNEY: No, just hold it until he arrives. MR. CHAIRMAN: Or we'll just skip it, and come back to it when the Mini ster arriv es. HON. R. PENNER: Yes. MR. CHAIRMAN: Why don't we just skip it and come back to it when the Minis ter arr ives ? We 'll skip No. 8 until the Minis ter arriv es. MR. D. ORCHARD: He wasn't here last night either. HON. R.

PENNER: He was well-represented though, Don. MR. D. ORCHARD: Yeah, you said an awful lot last night when ... HON. R. PENNER: Well, some of us speak li ttle but th ink lots. MR. D. ORCHARD: Some of you don't thi nk at all.

Wednesday, 10 July, 1985 BILL 16 - THE HERIT AGE RESOURCES ACT;

LOI SUR LE PATRIMOINE MR. CHAIRMAN: Bill No. 16. We sh all proceed with Bill 16, The Heritage Resources Act, page-by-page. Bill No. 16, the Heritage Resources Act, Page 1 HON. R. PENNER: Page 1, I have an amend ment, Mr. Chairp erson, to pr opose. MR. CH AIRMAN: Amendment. HON. R. PENNER: I move THAT the French ver sion of Bill 16 be amended by stri king out the tit le ther eof and substituting the refor the following tit le: "LOI SUR LES RIC HESSES DU PATRIMOINE" MR. CHAIRMAN: Agreed ? (Ag reed ) Page 1 - the Honou rable Att or ney- General. HON. R. PENNER: I move THAT

section 1 of Bill 16 be amended (

a) by strik ing out the words "this act" in the 2nd lin e of the defi ni tion of "heritage perm it", wher e it appears therein, and subs tituting therefor the words and figur es "P art 11"; (

b) by striking out the definit ion of "he ritage resource impact assessment", where it appears the rein, and substituting therefor the follo wing defi nition: '"he ritage re source impa ct assess ment' means a writ ten assessment showing the impact that proposed work, activity or develo pment or a prop osed pr oject, as descri bed in

section 12, is like ly to have upon herita ge resources or human remai ns;" and (

c) by ad ding th ereto, im med i ately after the defi nition of "heritage site", where it appears th erein , the follow ing defi ni tion : " 'h uman remains' means human remains as defined in

Part IV;". make motion and jus t add before th ere's an expl anation that all of th ese motions ha ve been ci rcul ated in both lan guages. MR. CHAIRMAN: Is it agreed ? (Ag reed) The Member for Pembina. MR. D. ORCHARD: Mr. Chai rman, maybe the Attorney General could explai n what thes e, other tha n the defi nition on human remains , what the purpose of the amend ments are, what they are in tended to clarify or correct? MR. CHAIRMAN: The Minis ter of Culture. HON. E. KOSTYRA: This amendment basica lly is related to human remains.

The only change in heritage resource impact assessment defi nition is that latter part where we're defi ning heritage res ources or human remains and then the same is true with respect to

section (c). 11 0 MR. CHAIRMAN: Other questions? Agreed ? (Agr eed) Page 1, as amended- pass. Page 2, as amended-pass. Page 3 - the Atto rney -General. HON. R. PENNER: Mr. Chai rman, I move THAT sect ion 2 of Bil l 16 be amended by stri king out the word "o bjects" in the 5th line th ereof and subs tituting therefo r the words "r esources or human remai ns". This is cons eque nt ial upon amendments alre ady passed . MR. CHAIRMAN: Agreed? (Agreed) The Member for Pembina. MR. D. ORCHARD: Mr.

Chairman, did the Minis ter of Cultur e find that heritage objects was not a broad enough definition and did n't in clude enough artifacts, build ings , areas, resources, so that he had to change it to heritage res ources? HON. E. KOSTYRA: Yes, it's just to give better defi nition to the term, th at's why we're using resources, it is somewhat br oader than objects; and also to take out "hum an remains" which would have been determin ed to be part of that, and to separa te them, that th ey are not part of heritage res ources or heritage objects. MR. D. ORCHARD: Mr.

Chairman, I suppose we could do it now or we could do it later when we get to the operativ e

section on the human remains aspect of it. Why now are we bringing in the reference throug hout the bill because the majority of the se amendments deal with the issue of human remains; what stimulated this necess ity? Wha t was the flaw or the sho rtfall of the legislat ion as origina lly tabled in that now we are making the se amend ments to deal with human remains? HON. E. KOSTVRA: A couple of reasons:

(1) In the previ ous act they were dealt with separa tely though not called human re mains, they were called skeletal remains;

(2) I th ink ther e's some sens itivity in having human remains bei ng dealt with in the all-encompassing term of "heritage resource." I think there is some sensitivity tha t human remains ought to be separa ted from that defi nition . MR. D. ORCHARD: Then thr ough the distin ction or the separat ion of human remains from herita ge resource in the genera l defini tion, are we conferrin g any new rights to the Crown or any new methods of - I'm look ing for the right word .

But are any new abilit ies granted to the Crown by having this distinc tio n of human remains in ter ms of the way that they are req uir ed to, for ins tance, make sure that a dis rupted, unmarked grave is restored, etc.? Is there anything that this new designation does to confer new powers to the Crown? HON. E. KOSTVRA: No. MR. CHAIRMA N: Page 3, as amended - the Attor ney General. HON. R. PENNER: I have a compend ious motion that tak es this change with respect to human remains and

Wednesday, 10 July, 1985 appl ies it to th ree other clauses tha t I would li ke, with your permi ssion , to move now. I move THAT Bill 16 be further amended by adding there to, immedia tely after the word "res ources" wher e it appears (

a) in the 5th line of clause 13(1)(

a) and again in the 5th line of clause 13(1) (

b) thereof; and (

b) in the 4th lin e and again in the 6th lin e of subsection 17(3) the reof; in each case, the words "or human remains". This is cons istent with amend ments already in place. MR. CH AIRMAN: it will affect three se ctions by consis tent use of the word. Is that agreed ? The Member for Pembi na. MR. D. ORCHARD: Mr. Cha irman, that's fine. That's an amendment tha t seems to be consis tent. Mr.

Chairman, in the br iefs tha t were presented last night, there were some concerns exp ressed about the poten tial impact this legislation would have on sit es adjacent to heritage sit es or design ated heritage sites, and tha t the power the Min ister has acquir ed in this legislation is for designa tion of properties tha t are not in thems elv es of sign ificant heritage value, but merely are located next to th ose types of prop ert ies. One of the issues tha t we've dis cussed in the deb ate on second read ing and it was dis cussed with some of the presenters last night was the issue of compensation.

I note tha t the Min ister has taken and made a number of amendments. At a later stage of this bill, he even has attem pted to bring in a pro cess by which compensa tion for damages could be allowed. Mr. Chairman, the general principl e of this bill is tha t we are pro tect ing a heritage resou rce for the public, for the people of Manito ba. Yet, the onus cont inu es to be on the owner of tha t heritage resource and the costs may - the Min ister does have in there the abil ity to enter into agreements to provide funding.

But by and large, the land owner, the pri vate owner of the site or the resou rce or the building can be req uired to maintain it as a heritage resou rce without compensation . That issue was add ressed by several peo ple last night, and I note tha t we're passing this part of the act with no reference to any efforts of compensation. Can the Mi nis ter ind icate whether he dis agrees with the issue of compensat ion or whether it is his in tention at thir d read ing, say, to in troduc e amendments which would pr ovide for a form ula or a forma t of compensa tion for people affected by designa tion under this act?

HON. E. KOSTYRA: We 've discussed this issue before. As I ind icated , it is not our int ent ion nor is there any pr ovi sion in this act tha t explicitly provides for any compensation with respect to sit es that are designa ted he ritage si tes. I also ind icated that it was the govern ment's int ention inde ed to announc e tha t th ere will be a grant program made avai labl e for sites tha t are designa ted provi ncial heri tage sites, and a companion prog ram for si tes tha t may be designa ted by municipaliti es.

I also ind icated that there is no such provision in other simi lar legisla tion, eit her in the Provi nces of Saska tchewan or Al berta , and we do not see the need to put such provision in thi s legis lation . 111 MR. D. ORCHARD: Mr. Chairman, two areas, and the first one I'll addr ess is the Min ister's ind ication of a grant prog ram. Does the Min ister need legisla tiv e autho rity to establish th at kind of grant pr ogram ? HON. E. KOSTYRA: I'm sor ry, I missed the question. HON. R. PENNER: Wo uld you need legislativ e authority for a grant program ? HON. E. KOSTYRA: No, I don 't.

I do have legisla tiv e authorit y. HON. R. PENNER: Yes, but you don't need it right now. HON. E. KOSTYRA: Not in this legisla tion. MR. D. ORCHARD: Oka y. Mr. Chairman, presumably tha t grant program or the funding for it does not cu rrently exist. Wi ll the Min is ter be wi thholdin g proclamation of this bill until he has his grant pr ogram in place? HON. E. KOSTYRA: The grant program will be in place very shortly . MR. D. ORCHARD: The quest ion still stan ds, Mr. Chairman. HON. E.

KOSTYRA: l don't antici pate designating any sit es under the pr ovisions of this legislation prior to a grant program bei ng formed and made available. MR. CHAIRMAN: The Member for Stu rgeon Creek . MR. F. JOHNS TON: Mr. Chairman, the Min ist er, in his sum-up in second read ing, did mention the gr ant program tha t he refers to at the present ti me. There was a distingu ished member of this Legi slatur e, Mr. Campbell, I recall many years ago, coming before a commit te e of the Leg islatur e dis cus sing The Expropria tion Act, and we have the same situation arising her e.

We have the Minis ter sayi ng that the government is going to set up a grant program tha t will work in some way to be compensation to people tha t have this designation put on their property. But it appears tha t the grant prog ram will be at the decision or the whim of the Cabi net or the Min ister , if he decides to do so. Wha t is wrong with putting in the act - the way Mr. Campbell always used to say, if you're going to do it, don't leave it in a situation that's up in the air . Put it in the act, so people will unders tand the bill and what the bill means when they read it or when it is bei ng exercised.

Wh at is wrong with having in this act a line that says the go ver nment will enter into ne gotia tions for compensation to the people that own the heritage objects or resources, to giv e compensation to them when the Cro wn designa tes the pro perty, the building, or if the Crown decides that objects are going to be the owner ship of the Cro wn, what is wrong with stating in this act tha t the go ver nment must enter into negotia tions regarding compensation to the people that are out of pocket or could be financially hur t by the

Wednesday, 10 July, 1985 designa tions of this act or the desi gnations made by the Min ister? Wha t is wrong with saying it right in the bill? HON. E. KOSTVRA: Fi rst of all, there is provi sions in the act under sect ion 15 tha t allows the Min ister to enter in to agreements with respect to the maintenance of heri tage si tes, so that enabling power is in the act.

Wha t the member I think is suggesti ng, however, is something that does not exi st, to my kno wledge, in any heri tage legisla tion, and tha t is, saying tha t the govern ment must enter in to an agreement, and tha t means that the government has to successfully conclude an agreement with respect to a site. The pr actice has been, with respect to other jurisdictio ns, Alberta is an examp le, wher e the y'v e designa ted 290-odd sit es, they'v e not run into such di ffi culty.

There would be far greater di fficulty if you mandated there has to be some form of compensa tion when ther e may not be any req uir ement for such compensa tion. I also think the re is provisions under the present Exp ropriation Act that provide s for legal remedy if some person does belie ve tha t the actions of the govern ment has been inju rious to their stat us as a prop erty owner. Maybe the Attorne y-General can just giv e reference to that partic ular section, but the re is that kind of legis lativ e authority at the present tim e. HON. R.

PENNER: Yes, in fact, ther e is stronger machi nery to permit comp ensation than the kind tha t is even suggested . In The Exp ropriation Act, sect ion 2( 1) "tha t notwi thst anding any act to the Leg islatur e her etofor enacted, whether special or general, this act appl ies wherever an authority expropria te land, or in the exercis e of its lawful powers causes the injurious affe ction of land and due compensa tion shall be dete rmi ned in accordance with the provi sions hereof." And

section 2(2) says that "whe re there is a conflic t between a provi sion of this act and a provision of any other act, general or special, the provi sions of this act," that is The Expro priation Act, "prevails". There is strong machinery of the kind that is suggested by the members already in place. MR. F. JOHNSTON: I th ink the Attorne y-General refers to the legislation that I'v e made refe rence to when we put it through many years ago and the di stinguis hed gentlemen said put it in the act so that we'll kno w what's happening.

Can the Attorne y-Ge neral give me a defi nition on the basis of expropriation vers us designation of a piece of prop erty, would the word "expropriation" apply in this partic ular act? Ther e's no technic al reasons why it wouldn't apply in this act. Does expropriation mean the same as desi gnating a prop erty that's held in tru st, etc., th at may cost the owner some financial problems? HON. R. PENNER: Fi rst of all, expropriation is not the same as desi gnation. However, this par ticular

section says, "or " in jur ious pro tect ion of land. lt covers both expropriation and something which is done under any other statutory auth ority which injur es, th at is, causes a loss of value to the land or its use; so both are covered . MR. F. JOHNSTON: So under The Expropriation Act, there's protection, in your opinio n, that people can make 11 2 appl ication for pr otect ion or compensation under n Expropriation Act, refer ring to this act. HON. R. PENNER: Yes. MR. D. ORCHARD: Mr. Chairman, I am pleased t have tha t assuran ce, but I'd lik e to make two poin1 with the Minis ter.

First of all, the Min ister make referen ce, as reason for not having any specifics o compensa tion within this act, he makes reference an uses the reaso ning that other provi nces who hav heritage resour ce acts don't have it in their act. BL yet the Minis ter has said that this act is the best an the most far reachi ng, etc., etc. Why doesn't he mak it even better than the other provinc es by having clause - it may even be a clause referring to that sectio in The Expropriation Act, specif ically?

Because, M Chairman, on so many occasions in the House we liste1 to mem bers of this go ver nment chas tising ou neighbouring govern ments for all the bad things the do, but whenever it's conven ient, they say, well, th1 other provinc es don't do it so why should we do it? Select ive deci sion by this government as to what i: good and what is bad and what they'r e going to mak; public and what they're going to embrace and wha they' re going to dis tance themselves from in othe provinc es doesn't really help in Ma ni toba.

The Min iste 1 secondly, is espousi ng this act as bei ng one of the bes in North America. it's

an act that's designed to taste and encou rage public supp or t, avocat ion a arche olog ical suppor t, professional support. This is ar act desig ned to make everybody happy and satis fie c in work ing toward the preservat ion of our herita ge. Mr. Chair man, there would be no better way to makE people feel even happier than to have a specific mentior in here of compensat ion.

The Attor ney-Ge neral say1 it exists in The Expropria tion Act as a supersed in� power in another act. lt would just add that fina impr ession tha t this act is not offensiv e to anyone , tha1 this act in deed in ten ds to co-o perate with every bod� who is in terested in preserving heritage resources, and not at their ind ividual expense.

I think it would be the ulti mate gestu re of good will for this Min ister to have th at kind of refe renc e in this act and it woulc demonst rate truly that this act is possi bly the best in Canada, if he made that final move and balanced appr oach to dealing with the public that may be affected by designations under this act. HON. E. KOSTVRA: I think we'll agree to di sagree. I think what we've point ed out is a number of things.

One is tha t ther e is no need to ha ve a sp ecific compensa tion provision in the legisla tion; in fact, if one was to do tha t, one would invite claims where no claims may need exist and I think that would be fiscal ly ir res ponsi ble. Secondly, there are provisi ons through natural justic e under The Expropriation Act if somebody feels that they have been affected negatively by such a declaration under this legisla tion. Further , we indic ated that we will have financial assistance available under grant program, if needed.

Not in every case is there need for financial assistanc e with respect to herita ge designa tion. In fact, as I indic ated in second reading deba te - we seem to be repe ating her e - that we've dealt with close to 12

Wednesday, 10 July, 1985 desig nati ons in the last four years, many of which were pr ivate owners hip , were not pub lic owners hi p, everywher e from the Hudson's Bay Company in Norway House to munici pally -owned prope rty, and have been able to successfully conclude dis cussio ns with th ose ind iv id uals, in some cases provid ing no compensati on, no financial assistance whatsoever, in some cases some small level of assista nce was needed in order to faci litate developme nt. So I thi nk that we have addressed tha t issue and I thi nk one has to look at how other provisi ons exist in other areas.

The member suggested someho w we could make the legi slation better than it is and claims tha t I sai d th at this is the best in Nor th America. I have never said tha t. People who made rep resent ati ons here made tha t claim ; I di dn't . I'm not denying it. MR. F. JOHNST ON: Mr . Chairma n, we've ha d discu ssio ns on this bill in second read ing. We've heard rep resen tatio ns, we've even had an ind icat ion from the Mi nister tha t he's go in g to set up a means of compensat ion by way of a fund of some ki nd.

We've got a pie ce of legisla tio n her e - and, qui te frankly, I'm not too interested in what the other pr ovin ces do - tha t is going to prot ect our heritage. We have , from the Attorne y-Ge neral, an assura nce tha t people can tur n to The Expropria tio n Act and, by using it, have a way of havin g some compensatio n if it is necessar y; and I say again , why not put in the bill just some small reference to the per son who is not knowled geable about all of the statutes of this provin ce, and when this bill appl ies and they read it, or their advisers read it, there's a

section in there that refers to The Expropriatio n Act or makes some refer ence to the fact that th ere is a com pens ation pro ced ur e available to them . Now, if it's in the act, the act almost becomes a clos e to per fect - noth ing's perfect - but close to a perfect situatio n where the pr otect ion of the people tha t the gover nment is deal ing with is assured. it's jus t one small line, as I said , put it in the bill . If you mean it, you intend to do it, and it's avai lable right now, why not make the reference in here to the avai labil ity of it for the people who read this act.

As a matter of fact, I would even end up, Mr. Chairma n, by saying I don't know tha t it could be done in this very moment or in the next fiv e minutes. I would say to the Minister if he could have dis cussion with the Attor ney- General or his officials to consider a small clause showing the people that they have pro tect ion or com pensation reg ardin g this act when the governme nt makes decisi ons to oper ate withi n the bounds of this act. HON. E. KOSTYRA: Again, I thi nk tha t abil ity exists in The Expropria tio n Act.

If someone feels tha t th ey have been in jur ed, I see no need to make any refere nce or amend ment in this act. HON. R. PENN ER: I thi nk what should be pointed out is tha t you have in The Expropria tion Act a whole mech ani sm, a whole machin ery and a whole jur ispru dence and sin ce it appl ies very clearly and specific ally to this act wherever land has been inj ured the n to try to repl icate that in this statute it would, in 11 3 fact, weaken the rights of people under this statute. We just couldn 't do it. MR. CHAIRMAN: The motio n on the floor refers to clause 13 which we haven't reached yet.

I think it's prematu rely introd uced. HON. R. PENNER: Wel l, the problem I had is the way the motio n was given to me as it deals with clause 13, it deals with clause 17 and since it carries forward as do the next two motio ns, the one idea that's already been adopted, I didn 't know how to ... I'll accept your ruli ng whatever that may be. MR. CHAIRMA N: Whe n we reach clause 13(1)(

a) then we will in trod uce . HON. R. PENNER: Then, I'll have to make these each as separate motio ns. Ok ay, fine. Le gisl ative drafts persons gave it to me in this form. I thoug ht they knew. D. ORCHARD: What page are we on, Mr. Chairm an? MR. CH AIRMAN: We are now on Page 3, as amended - pass. Page 4 - the Member for Pembina . MR. D. ORCHARD: Mr. Chairman, to the Minister. In

section 4 of the bill (a), there is the requirement to publi sh a Noti ce of Intent in one issue of a newspaper cir culati ng in the area of the site. If that's in Winnipeg, th at's fine, but in rural Mani toba, you'll often run into a circum stance where a site may well be covered by one or more newspapers. Wo uld the Minister conside r an amend ment - if you say one issue but say, newspapers in the area, and possibly even because in rural papers they are usually weekly newspapers, would the Minister give conside ration to publi shing the Notice of Intent in two issues of newspapers circu lating in the area?

Then you don't exclude it to one newspaper and only one issue. HON. E. KOSTYRA: I have no pro blem in terms of intent what the member is saying . I would suggest that if he is willing to leave tha t with me and I can deal with it in report stage and make this consistent with what is in The Municipal Act with respect to the pro perty - I bel ieve in The Municipal Act it has two specific is sues or two newspapers . I think, because so many of the other provisio ns in this act are done in a way that is cons iste nt with The Municipal Act with respect to land use tha t this should be the same. MR. D. ORCHARD: Ok ay.

I'm not fami liar with the provisio ns in The Municipal Act but the Mini ster has reason to bel ieve tha t it's two issues inst ead of one. HON. E. KOSTYRA: Or two papers. MR. D. ORCHARD: Or in papers ci rculati ng ther e, so you're not restricted just to one paper? In my const itue ncy where you may have some desi gnations, there are probably as many as th ree papers overlap ping a giv en area, and not everyone takes the same paper.

Wednesday, 10 July, 1985 One has a univ ersal ci rcu la tio n, the other by subscriptio n. One of two th ings would hap pen; you may miss people or, certain ly, you are goi ng to dis crim inate slightly in choosin g one paper out of th ree tha t may be ci rculati ng in the area and it would be, to me, advisable to have it in the papers tha t ci rculate in the area. MR. CHAIRMAN: Page 4- pass; Page 5. HON. E. KOSTYRA: On Page 5 ther e's an amend ment. MR. CHAIRMAN: Is there an amend ment on Page 5? HON. E. KOSTYRA: Yes. MR. D. ORCHARD: Page 4 of your amend ments, Mr. Chairman. HON. E.

KOSTYRA: Again, it comes in a couple of sections . MR. D. ORCHARD: First motio n on Page 4. HON. E. KOSTYRA: it comes in two sections. MR. CHAIRMAN: Are we going to accept compend ious motion? Wha t's the will of the Committee tha t affects more than one section? HON. E. KOSTYRA: it 's the same ame nd ment . Why not? That's the usual pr actice. MR. D. ORCHARD: Mr. Chairma n, when the Minis ter gave us the amend ments last night we went thr ough motion- by-motion, page- by-page and found them rela tively easy to follow. it takes but a moment to propose the motion. it avo ids this ki nd of confusio n.

We've alr eady wasted en ough tim e talki ng about whether we can accept th ree pages of moti ons of amendment at once. We would have had th ose thin gs through . Why can't we just move the amendments as they come up? Ther e's one motio n for amend ment on Page 5 of the bill. Whi lst I' ve got the floor , the Min ister is look ing at the one-iss ue business. That appears twice in here and I presume any amend ment made in the fi rst place will fol low th rough as an amend ment wher ever the one issue notice in a newspaper appears. HON. R.

PENNER: I'm goin g to move this motio n and if somebody thi nks it's out of order , we can deal with it on that basis. THAT bill 16 be amended by strik ing out the figu res "10" where they appear in the 9th line of subsection 7( 1) thereof and again in the 5th line of subsection 28(1) ther eof and subs tituti ng ther efor, in each case, the figu res "2 1". MR. CHAIRMAN: Pass. HON. R. PENNER: With your permission, I would ask that we revert to the amend ment. MR. CHAIRMAN: We revert to the amend ment that we rejected before because we want to be consiste nt. 11 4 HON. R. PENNER: Ther e are two amend ments.

The one at the bottom of the fi rst page of the amend ment. I move THAT Bill 16 be further amended by addi ng thereto, immedia tely after the word "r esour ces" where it appears (

a) in the 5th line of clause 13(1 )(

a) and again in the 5th line of clause 13(1)(

b) the reof; and (

b) in the 4th line and again in the 6th line of subsect ion 17(3) ther eof; in each case, the words "or human remain s". MR. CH AIRMAN: Agre ed. HON. R. PENNER: I would move further , Mr . Chairp ers on. THAT subsection 21(1) of Bill 16 - because this is the same thing - be amended (

a) by add ing ther eto , immedia tely after the word "site" wher e it appears for the 2nd time in the 4th line thereof, the word s "belie ved to cont ain heri tage resour ces or human remains "; and (

b) by strik ing out the word "the reof" in the 5th line thereof and substi tuting ther efor the words "of the site and the herita ge resou rces or human remain s". MR. D. ORCHARD: Mr. Chairman, were we not goin g page-by-pa ge? MR. F. JOHNSTON: Mr. Chairma n, it's pretty obvio us tha t the Mi nister had his st aff work on some amend ments to this bill and he had them put together and m after they had put them toget her, you see on Page 3 of the amendments we get up to

section 67. I repeat, obviously again, it appears as if the Mi ni ster or his staff suggested that there should be further amend ments in this bill so we go to Page 4, which takes us to Bill 16, back to

section 7; Page 4 takes us back to

section 12; and then when you look at Page 5 we're back to

section 12 again, and then we jump, on Page 5, to

section 44( 3); and then when we go to Page 6, we go to sectio n 35. So the obvio us pro blem is the ame nd ments tha t have been presented to the Attor ney- General to put before us are not in order of page-by-page. Last night and this morning, at considerable test to my collea gue for Pembina's temperame nt and mine , we went thr ough this and fin ally got it straig htened out and came to the conclusio n that the y're not in ord er, but we would try to do it page- by-page, move the amend ments.

I th ink the Attor ney-Gene ral has been giv en a problem that he hasn't been giv en someth ing tha t is in the proper order of the bill. MR. CHAIRMAN: With a little patie nce , the committee can proce ed, a little bit slowly but orderly . The Member for Pembi na. MR. D. ORCHARD: Mr. Chairma n, can I just make the suggestion tha t we go page-by-page, and wher e's ther e's an amend ment to the gi ven page the Attor ney General can propose it. The Minis ter has already caught an amend ment on Page 4 which was to

section 7(1) and we got that amend ment through quite nicely .

Wednesday, 10 July, 1985 MR. CHAIRMAN: The suggestion, proposal accepted with grace? MR. J. DOWNEY: Page-by-page. MR. CHAIRMAN: Pa ge-by-page. Page 5, as amended-p ass; Page 6-pass. Page 7 - the Member for Pembina. MR. D. ORCHARD: Mr. Chai rman, just once again to the Minis ter. The se last two pages have dealt with the appeal process and in cases of designatio n where there is an appeal fr om the Int ent to Designate by the landowner, or by an affected or in terested ind ividu al, the final deci sio n always ends up ... Sorry , I'll maybe start over again.

The last two pages tha t we've dealt with here deal with the appeal process of an ap peal on the intent to design ate, the Notic e of In tent to desi gnate, and the same th ing appl ies when we get into the

section on munici palit ies, the same basic format is in place. The pro blem I forsee, and once again the Mini ster may v1ell say that it's the same as in othe r acts, but the ultima te appeal is left with the Minister whose department started the Intent to Designa te.

I simply quest ion the Minister , is that suffici ent protect ion to the ind ividu al, and should there not be an appeal to a high er autho ri ty, other than the Mini ster, because the Minis ter - it's clear when we get into Page 8, for ins tance, I think it is, but at any rate, when we get further on in the pages - the Minister can even reject a reco mmend ation by the Municipal Board that his Intent to Des ign ate should be modified . I mean, the ent ire authority is with the Minis ter in this.

The Muni cipal Board has been used as, if you will , a cour t of hig her app eal, but the legisla tio n is clear tha t the Minister can reject that reco mmendatio n by the Municipal Board and proceed with the original design ation or Intent to Desi gnate. Furthermore, at that stage, the Municipal Bo ard cannot be brou ght in because if the Minister has not varied any aspect of his Intent to Desig nate, that is one of the crite rion before an ind ivi dual affected by the Int ent to Designate can appeal. There has to be changed cir cumstance or a varied orde r for intent to designate.

If the Mi ni ster rejects any varia tio n by the Munici pal Board he the reby precludes any oppo rt unity for the ind iv idual to make a furt her appeal because no circu msta nces ha ve changed. People are trus ting of this Mini ster, as was ind icated last night , but I don't think that is a proper method of appeal, where it end s up with the Min ister and the Lieutena nt-Gov ern or-in-Council being the final body of appeal. HON. E. KOSTVRA: We ll, I dis agree. As I poi nted out, again I think we're reha shing some old gr ound.

Under the present act ther e was no provi sion for any kind of public process whatsoever, that has been put into this bill. The other point I would make is tha t I think this process, again, is consistent with respe ct to the other processes that exist with res pect to pro perty and land use under The Muni cipal Act, where ther e is a pro cess to the Muni cipal Board, but the final deci sion or appeal, with respe ct to issues rela ting to muni cipal planning 11 5 and land use, rest with either the Min ister or Exe cutive Council. MR. D. ORCHARD: Cour t of Appe al. HON. E. KOSTVRA: Court of App eal what? MR. D.

ORCHARD: Mr. Chairm an, I maybe di dn't hear the Min ister cor rect ly, but I belie ve that deci si ons by the Muni cipal Board, as the y are giv en in The Municipal Act, have appeal right to the Manitoba Court of Appeal, and the Attor ney-General can qual ify that. The Minis ter is not the final say in Municipal Board decisi ons as they apply under The Muni cipal Act. HON. E. KOSTYRA: Land use. Planning land use. MR. D. ORCHARD: We ll, the Att orney-General might be able to clarify that. HON. R. PENNER: I know tha t in some situatio ns there is an appeal to the Court of Appeal.

I can't say that is so with respe ct to all, I'd have to get a hold of the ... We 'll check it out. MR. D. ORCHARD: Ok ay. Mr. Cha irma n, like the Min ister says, there is now this publi c notice and public hearing, etc., etc., before any desig nation is made cont rary to the othe r act.

The Minis ter must also cert ainly recognize and ackno wledge that there is a substantial offence and penalty clause in this act, as well; and tha t surely must req uire a court of hig her appeal, if you will , than the Minis ter who's maki ng the or iginal decision and, under this act, his people mak ing a decisio n tha t an offence has occurred and tha t, by

summary convict ion, a fine should be levied . That's the neces sity for the higher Court of App eal, in my opinio n. HON. E. KO STYRA: I do n't follow you . The re is provi sio n with res pect to offence. lt has to be a court decisio n, not a bureaucrat ic decision. I don't follow your question. MR. D. ORCHARD: You say, to justi fy not having any hig her appeal than to you, as Ministe r, fr om a municipal HON. E. KOSTYRA: it's Exe cutiv e Counci l. MR. D. ORCHARD: Your reco mmendation would be hig hly valued there, I pres ume. I know the Att orney General is just maybe not qui te agreeing . But, Mr. Cha irma n, the point I'm making is that the offence and penalty

section in here can pro vide for substantial penalti es to ind ividuals and companies. We 're talk in g up to $50,000-a-day for each day an offence occurs under this act. That's wh ere the higher . HON. R. PENNER: That's covered by The

Summary Convic tions Act, and all of the appeals could go right up to the Su preme Court. This is di ffere nt. This is designati on. You're talking about offences. MR. D. ORCHARD: Right, but under the designa tion, anyone who viola tes the designation, because the

Wednesday, 10 July, 1985 Minis ter hasn't listened to him, will fall under the penalty section, Mr. Atto rney- Gene ral. HON. R. PENNER: Not automa tically . If it is alleged that someone has viola ted desig nat ion, before ther e can be a penalty th ere has to be a charge. There has to be a trial. At tha t trial, every issue includ ing the Ch arter can be rai sed . Cons titutio nal jurisd ic tio n que sti ons can be raised . The appel lant has a further appeal to the Cour t of Queen's Bench or to the Cour t of App eal, and has a further appeal to the Su preme Cour t of Canada on issues of law.

So with respe ct to the penalt ies , the whole pano ply of appeal mechani sms is open. MR. D. ORCHARD: Wel l, I can see that we're not goin g to win that argu ment, so we might just as well pass it. MR. CHAIRMAN: Page 7 -pass; Page 8-pass. Page 9 - the Atto rney -Gener al. HON. R. PENNER: The second motion on Page 4 deals with 12(1). Ok ay, I'll read it. THAT subsection 12(1) of Bill 16 be amended by strik ing out all the words, letters and figu res in the last 7 li nes thereof and substitu tin g therefor the words, letters and figu res "i n clause (a), {

b) or (c), and subject to secti ons 13 and 14 , submi t to the minis ter an appl icat io n for a heritage permit authorizi ng the pro posed work , activi ty, develop ment or project, and therea fter , if the mi nister after cons ide rin g the appl ication so req uir es, shall, in add itio n and before commencing the proposed work, activi ty, developme nt or pro ject , submit to the minis ter a heritage resou rce impact assessment or develop ment plan or both, as the mi nis te r may req uir e, and such other pla ns, documents, material and in forma tio n as the mini ster may req uir e, with respect to the proposed work, activi ty, development or pr oject , prep ared at the cost of the perso n." I move that.

MR. CHAIRMAN: Agreed? MR. D. ORCHARD: Explain. HON. E. KOSTYRA: Under the orig inal word ing , any potent ial build ing tha t was desig nated where th ere was go ing to be work do ne would req uir e an im pa ct assessment This removes that mandatory requir ement , and allows provi sio n for a permit to be issued without having a full impact assessment. MR. CH AIRMAN: Page 9, as amended - the Member for Pembi na. MR. D. ORCHARD: Mr. Chair man, that's the same basic amend ment we'll be moving on

section 12(2). I thi nk this is a step in the right di rect ion in that it makes more flexible and less costly to the owner of a herita ge resource this legislatio n. The Minister is heeding to some advice from a num ber of peop le, not only ourselves, but a number of people, and I thi nk tha t is a step in the right di rect ion. If we could just get him to go all the way and come up with a definite reference to 11 6 compensation, it would make this act a reasona ble document . MR. CHAIRMAN: Page 9, as amended-pass. Page 10 - The Hono urable Attor ney- General . HON. R.

PENNER: I have two motio ns with respe ct to this page. Mr. Chair per son, I move THAT subs ection 12(2) of Bill 16 be amended (

a) by add ing thereto, immedia tely after the word "r esour ces" in the 2nd line ther eof, the words "or human remain s" ; and (

b) by strik ing out all the words and figur es in the last 8 lines ther eof and substitut ing th erefor the words and figur es "b e, and subject to sectio ns 13 and 14 , to submit to the mi nister an appl icat ion for a herita ge permit author izing the work , act ivi ty, dev elopme nt or pr oject , and the reafter, if the minis ter after conside ring the appli cation so req uir es, to submit to the mini ster, in add itio n and before re comme ncing or commencing the work, activity , developme nt or pr oject, a heritage resou rce impact assessment or develop ment plan or both, as the mini ster may req uir e, and such other plans, documents, material and inf ormatio n as the minis ter may req uir e, with respe ct to the work, act ivity , develop ment or project , prepared at the cost of the owner or lessee." I move that.

MR. CHAIRMAN: Agreed? The Member for Pembi na. MR. D. ORCHARD: Mr. Chairma n, last night the Minis ter heard present ation from one organizat ion or on behalf of one organiza tio n, namely, the Pembina Mountain Clays Inc. Now they made the point, and I supp ose I might just as well discuss it here as anyth ing , that under the act there is the abil ity to stop, order to cease the work , etc., etc. They're on a very tight sched ule, and I can assure you of that because I know their oper ati on reasona bly wel l.

They ha ve to ha ve their mi ning operation done in the summer months before freeze up, and any delays can severely adversely effect their operation. Mr. Chairma n, I have always had a problem with

section 12(2 ), where it says "where the Mini ster has reason to belie ve''. Now granted some of the presenters last night di dn't have concerns with that, because they said he's not goi ng to act unless there is pretty strong evid ence. That may well be, but the legisla tio n is loose enough in here, where "has reason to bel ieve" can mean almost anythi ng . In the inst ances of Pembina Mountain Clays, you could essen tially shut down a half-year of operation in the wintert ime and half-a-sum mer's mining under this act There is no req uirement for compensatio n until we get to an amend ment that the Minister is proposi ng under

section 18, and we'll dis cuss it there. Wha t I'd like to know . HON. E. KOSTYRA: 17. MR. D. ORCHARD: . . . from the Minis ter is whether the ame nd ment tha t he's pro posing on Page 6, that

Wednesday, 10 July, 1985

section 18 be amended , which we'll be getting to shortly - and the Attorn ey-General may be the one th at would answer this one. In the example of Pembina Mountain Clays, if the y are shut down under an order here and they lose half-a-s eason's pr oduction and employment in the winte r, can their damages be such that those total costs are recovere d? Is that an actionable req uest for damage recovery? HON. R. PENNER: I would say yes, it is. We really essential ly, I think, dis cussed this when we dis cussed those provi sions of The Expropriat ion Act which I would think apply. MR. D. ORCHARD: Okay.

Now one of the things that we can do to re solv e some of the conc erns that legal counsel for Pembina Moun tain Clays has over even the amendment that the Min ister is proposi ng is tha t the onus is on them then to go to cour t and, at consi dera ble expense, prove th eir damages, etc., etc. Once again, we're fighting the govern ment.

The Minis ter, I think, has a rea sonable unders tanding of their opera tion, and I thi nk he has a reaso nable appre cia tion tha t it is with co-o perat ion that Pembina Mountain Clays over the past number of years, pro bably for 30 years, has preserved the paleontolog ical resource tha t is prese nt from time to time in th ose bentonite layers. What I would lik e from the Min ister is the assuranc e tha t he would n't und uly use this act and the po wers tha t are in it to harm the ir opera tion, because I can tel l you that th ey have co-o perated with the museum in Mor den. As the gentleman last night, Mr.

Wr ight, poi nted out, right now the re are thr ee summer students there tha t are there on a full-time basis as th ey're mini ng, in the hopes tha t th ey may make a di scovery tha t they hit a fossil re mains down the re. Then they will im mediately move in and remove tha t in an expert fashion. That work ing rela tionship has been a good one. lt has preserved a lot of foss il rem ains, some of which are unique and some of the best in the world. I would just lik e the assurance of the Minis ter that he's not going to use some of the ar bi trary powers in here to advers ely affect the commercial oper ation. HON.

E. KOSTYRA: As I ind icated last night, I think the situation that is in place between Pembina Mountain Clays and the local community is an excellent one, and one that the implementation of this act will not di sturb. In fact, there could be ways of dealing with that situation on an ongoing basis where the department could issue a permit to the amateur colle ctors in tha t area to have access to that site on an ongoing basis, so it would be covered and the conditions could be tho se tha t prese ntly exist between them right now.

But there is no intention, using the specific example and specific situa tion that the mem ber's deal ing with, to in any way alter th at arra ngement , because it is very successful. MR. D. ORCHARD: Thank you. MR. CHAIRMAN: Mo tion agreed? Page 10, as amended? HON. E. KOSTYRA: I'm sorry, th ere is 12(3 ). 11 7 HON. R.

PENNER: Oka y, at the bottom of Page 4 of the amendments as cir culated, I move THAT subsect ion 12(3) of Bill 16 be struck and the following subsection subs titut ed therefor: 12(3 ) Any appl ication for a heri tage permit, and any heritage reso urce impact assessment or development plan req uired under this

section shall be in such form and shall cont ain such in form ation as the min ister may, by re gulation, prescribe. MR. D. ORCHARD: Agree d. HON. R. PENNER: Going back to Page 1 of the amendments, I will move part of tha t motion. I move THAT Bill 16 be further amended by addin g theret o, immedia tely after the word "resour ces" where it appears (

a) in the 5th line of clause 13(1)(

a) and again in the 5th line of clause 13(1)(

b) thereof ; and in each case, the words "or human remai ns". MR. CHAIRMAN: Page 10, as amended- pass; Page 11, as amended- pass. Page 12-pass; Page 13- pass. Page 14 - the Attorne y-Gene ral. HON. R. PENNER: I have an amendment which I think deals with some of the concerns raised by the Member for Pembina. HON. E. KOSTYRA: 17(3) first, Roland. HON. R. PENNER: 17(3), where 's that? Ok ay, we've got it. Start ing with the last part of the amendment on Page 1, I move THAT Bill 16 be furthe r amended by adding theret o, immediately after the word "resources" where it appears (

b) in the 4th line and again in the 6th line of subsect ion 17(3) the reof; in each case, the words "or human re mains". MR. CHAIRMAN: Motion accepted? MR. D. ORCHARD: That one isn't the one I want, Rally. HON. R. PENNER: No, I know. We 're getting to the goodie. MR. D. ORCHARD: Wh ich page are we on now, Mr. Chairman? MR. CHAIRMAN: Page 14. HON. R. PENNER: We 're on Page 14, and I'v e got an amendment to sect ion 18. MR. D. ORCHARD: Mr. Chairm an, before we get there, can I pose a quest ion to the Min ister on

section 17(3)? HON. E. KOSTYRA: Sure. MR. D. ORCHARD: Under this

section of 17(3), the Min iste r can ord er restorat ion of a site which is

Wednesday, 10 July, 1985 damaged by, presumably, the person tha t owns it. Now under circum stances where that's willful damage or where they knew tha t ther e was a heritage value or it was a desi gnated site, that may well be legiti mate. I'm not di sputi ng that. But this also can req uir e, if I'm reading it corr ectly, the rest oratio n of a site for damages done when a person di dn't know tha t he was damaging a heritage resou rce. Does this not allow after the fact desi gnat ion tha t a site that has been damaged is a heritage site that has to be restored? HON. R.

PENNER: That's the ki nd of issue that can be enco mpassed in the appeal. MR. D. ORCHARD: You see, what I'm gettin g at, Mr. Chai rman, is this sect ion starts in 17(1): "W here the Minister belie ves on reasona ble and probable groun ds", etc. This isn't the design ated site provi sion, if I'm reading it cor rect ly. This isn't a site tha t is under a Notice of In tent or a desi gnated site. This is one wher e there's const ruction going on, and the owner does not real ize that he is causing damage to a heritage site because there is no Notice of Intent and the site hasn't been declar ed. That

section 17(3 ) gi ves you, Mr. Minister , the power to make the ind iv id ual who did the damage - and this would be without kno wledge, because you've moved in because you've had reason to bel ieve. You can ask him to restore tha t site at his cost. That person or tha t corpora tio n may have had no idea whatsoever tha t the site had her itage value. Do you follow what I'm getting at? HON. E. KOSTYRA: I'm sor ry. I don't see the words that the member is putting into

section 17(3 ). Sect ion 17(3) talks about the damage has to sto p. The re's no provision there. If you look at the bottom, it says, "b ut shall not take or cause to be take n any further steps. " That is, the Minister , so under this section, the Minister cannot order any restitutio n or costs associated with restitution of the site without going back to the remedie s that are prescri bed in the pr evious

section with res pect to the order of the judge. All it does is halt any continu ing damage. lt doe sn't re quir e any rest itutio n or costs associ ated with the restitut ion. HON. R. PENNER: If you read 17 as a whole, 17 begins by deal ing with breaches of sect ion 12 or sect ion 14. Thos e br eaches, legally speak ing , cannot be caused by inadv ertence.

If a person do es some thin g inad vertent ly, not knowing that it is a heritage si te, the n he cannot be in br each of 12 or 14, so you have a stop order wher e the matter is the n brought to the attent ion of the person and the n that is notice to the person of someth ing tha t hitherto tha t person may not have known, but it can't be restrope ctive in any way with respe ct to someth ing tha t has been done; and then you have the stop order tha t is dealt with by a judge and there, under 17(2 ) and furth er, if ther e is any matter where somebody feels the y're being called upon to do something for which there is no fault , has a remedy before the judge, bec aus e the Su preme Court of Canada has held with respect, the inte rpr etat ion of statutes, that there is no absol ute liabili ty without absol utely liabili ty being desi gnated . 11 8 Then 17(3) just deals with a very particu lar situ atio n where a delay in getting a stop order might be prejudi cial - and it will be very rare - the Minister has powers, but cannot take any further steps under this particular ministerial ki nd of stop order without the order of a judge, obtain ed under subsection (2).

In other words, he must get to that judge as soon as possi ble. This is no di fferent than no rmal provisio ns in civil litiga tio n for what is called an ex parte injunct ion, which is returnable within a few days to a judge with notic e being giv en to the other pa rty; and then, to add additio nal pr otection, ther e is an appeal provi sio n which will be expanded by an amend ment to

section 18. MR. D. ORCHARD: Mr. Chair man, ther e's onl y one th ing tha t I dis agree with the Attor ney-Gen eral on in his expla nat ion, in that I belie ve he ind icated that the ind ividual so affected, potential ly, by

section 17 could not be unaware or be an inadve rtent offend er. I thi nk sect io n 12(2) re ally le aves it that the corpora tio n is an inad verte nt offender , because we go back to tha t "the Minister has reason to bel iev e". In other words, the Minister could - and I'll use the example - come to my farm and . . . HON. E. KOSTYRA: Wha t 12(2) says is ... the Minister has to make the deci sio n fi rst. MR. D. ORCHARD: Right. HON. E.

KOST YRA: And unless you make that decision, then you can't say that someb ody's in br each of tha t, so we sti ll have to come and say, yes, this is a site tha t has a potent ial for heri tage res ources. Then, after that point, somebody would potent ially be in br each of 12(2 ) and then you could order that person to stop the work, not befo re; and secondly, you can't order any rest itutio n of that site. MR. D. ORCHARD: Oka y. Now I agree with the Mi nis ter, what the Minis ter of Culture is saying , but then in

section 17(4)(a), the Minister has the oppor tunity to, by actio n in the court of competent jurisd iction, etc., etc., recover the costs and expenses necessarily incurr ed by the Mi nister in tak ing th ose steps. HON. E. KOSTYRA: That's remedying a breach . MR. D. ORCHARD: Right, but we go back to the fact tha t the breach could have been inad vertent until you put the stop order on it. Yes, it could ha ve been. HON. E. KOSTYRA: Ther e's no breach. HON. R. PENNER: Technic ally, in law, ther e's no breach. MR. D.

ORCHARD: You're sayin g tha t the br each doesn't exist until the time that you've made your reason to belie ve, your invest igatio n has demonstrated that it is an his toric site - it's from tha t poin t on tha t any damage is subject . Prior to that, it's inadv erte nt and ther e's no reco urse under the br each. HON. E. KOSTYRA: No breach. MR. D. ORCHARD: Good.

Wednesday, 10 July, 1985 MR. CHAIRMAN: Is the amendment agreed to? HON. R. PENNER: This amend ment appears on Page 6 of the amend ments as cir culated. I move THAT

section 18 of Bill 16 be struck out and the following

section be substit uted ther efor: App eals from order or action of Mi nister 18 A person who feels aggrieved by an order made or action taken by the Minister under

section 17 may appeal ther efrom to a judge of the Cour t of Queen's Bench within 30 days from the making of the order or the taking of the action, as the case may be, and the judge upon hearing the appeal may confirm the order or dir ect the Mini ster to vary or rescind the order and may give such further dir ection in respect of the order and such di rection in respe ct of the acti on, as to damages or other wise, as th e jud ge deems proper . MR. CHAIRMAN: Amend ment agreed to? The Member for Pembina . MR. D.

ORCHARD: On ce again, tha t wil l give a pretty open-en ded ability to recover damages under the sec tions we've been talking about, under the ci rcumstances with corpo ratio ns like Pembina Clays and ... HON. R. PENNER: And costs, legal costs. MR. D. ORCHARD: I beli eve we've got tha t settled. HON. R. PENNER: Are we finished with Page 14? MR. CHAIRMAN: Page 14, as amended- pass. The Attorne y-General. HON. R. PENNER: Wit h your indulge nce, if we can go back a couple of pages, ther e is an amendment in the French version which I missed and this will rel ate to Page 10.

I move THAT the French version of subsecti on 12(2) of Bill 16 be further amended by strikin g out the words "ou pr ojets" in the 5th line th ereof and su bsti tuting th erefor the words "projets ou pr ojets de mise en valeur ". MR. CHAIRMAN: Agreed? (Ag reed ) Page 15- pass. HON. R. PENNER: I move THAT subsection 21(1) of Bill 16 be amended (

a) by adding ther eto, imme diately after the word "site" where it appears for the 2nd time in the 4th line there of, the words "beli eved to conta in her itage resou rces or human remains "; and (

b) by striking out the word "the reof" in the 5th line thereof and subs ti tuting ther efor the words "of the site and the herit age resources or human remains". MR. CHAIRMAN: Page 15, as amended- pass; Page 16- pass. 11 9 Page 17 - the Member for Pembina . MR. D. ORCHARD: Mr. Chairman, the Mini ster gave us informa tion last night that there are currently seven pr oper ties so desig nated under the existin g legislation. HON. E. KOSTVRA: No, the re's more.

Wha t I indi cated was that th ere were seven pr operties, th ose that were owned other than under Cr own ownership, tha t the y were in some form of private ownership. MR. D. ORCHARD: Wha t does the Mini ster intend to do wit h passage of this act with tho se seven private pr operty owners to make them aware th at the ir desig nation is trans fera ble and they now fall under the pro visio ns of this act? Is he going to give them formal notice? HON. E. KOSTVRA: At this very moment they are all being communicated to, in writ ing, by myself indi cating tha t they wil l come under the pro vis ions of the act . . .

MR. D. ORCHARD: You haven't got it passed yet, tho ugh. HON. E. KOSTVRA: . . . if the act is passed . There are actually seven that have been actually desig nated where ther e's buildings and ther e's a co up le of archaeolo gical sites that have been desig nated there on private prope rty. MR. CHAIRMAN: Any amendment on Page 17? The Member for Pembina . MR. D. ORCHARD: Just as a matter of inform ation, how many sites, in total, do we have now? I'll tell you what, could you provide me with a list of them, I'm interested to kno w what and where. HON. E. KOSTVRA: We will provide you with a detailed list. MR.

CH AIRMAN: Page 17 - the Honourable Mi nister . HON. E. KOST VRA: I ju st want to point out to members, and we will do this at Report Stage, there's referenc e in 23(1) with respect to a registry and the re was a point made last nig ht by the Real Estate Board with respe ct to the main "s hal l", I wil l move an amend ment dealing wit h all of the areas where there is "may" wit h respe ct to registry and I think it appears in four spots, we'll change them all to "sha ll". I guess we could do it now actually. MR. CH AIRMAN: Amend ment, "may" to "sha ll". Page 17,

section 23. HON. R. PENNER: Ok ay, I'm going to move- let me do this one compen diously for heaven's sakes, it's just "may" to "shall". THAT Bill 16 be further amended by striking out the word "may" where it appears (

a) in the 1st line of subsection 23(1) thereo f; (

b) in the 1st line of subsection 39(1) thereof; and

Wednesday, 10 July, 1985 (

c) in the 1st line of subs ection 55(1); and substitut ing ther efor , in each case , the word "sh all". MR. CHAIRMAN: Agreed? (Agr eed ) Pa ge 17, as amended -p ass; Page 18 - pass; Page 19-pass. Page 20. HON. R. PENNER: Yes, I'v e got me a motion her e. HON. E. KOSTYRA: We 've made tha t motion already if it's agreed. MR. CHAIRMAN: The motion is agreed to? (Agr eed ) HON. E. KOSTYRA: it's 10 to 21 days. MR. CHAIRMAN: Page 20, as amended-pass; Page 21- pass; Page 22- pass. Page 23 - the Member for Pembina. MR. D.

ORCHARD: Und er clause (c) "the maintenance of any municipa l heritage sites by the owner, or by the owner with the financial or other assi stance and advice of the munici pality or other wise, and may enter into an agreem ent . . . " Now, this isn't a compulsory clause, if you will, "the munic ipality may". And it's the same pro blem with pro vincial desi gnat ions. I guess I'v e got some problems with it. it's the same old ar gument, I' ve presented it before.

We are preserving for the general public our heritage resour ce at the provincial, plus the municipal level, and there is no onuses, only the "may" tha t the government will assis t , but yet , once the desig nation is the re , the onus is ther e to preserve it and mainta in it, there is no complime ntary onus on the governm ent to assist the ind ividua l. Is this a case where we amend and , once again, repla ce "may" with "sh all"? HON. E. KOSTYRA: No. We 've di scussed this same issue in context of provi ncial and th is is the complime ntary enabling power for a municipality .

The change will be made with respe ct to "may" and "sh all" With respe ct to the mainten ance of a regist ry, and my positio n is the same wit h respe ct to this as it was with resp ect to the provin cial. MR. D. ORCHARD: Just to comment. That's one flaw in this leg islation tha t will cause some prob lem. I don't belie ve the Minis ter's concerns about the pro blems such an amend ment would cause are sufficient to warrant its exclusio n from the legi slation. MR. CHAIRMAN: Page 23-p ass; Page 24-pass . Page 25 - motion? HON. R.

PENNER: Yes, I move THAT subsection 35(3) of Bill 16 be amended by addi ng th ereto, imm edia tely after the word "resou rces" where it appears in the 4th li ne and again in the 7th line ther eof, in each case, the words "or human remain s". MR. CHAIRMAN: Page 25, as amended. 120 HON. R. PENNER: No, first thi s amendment. MR. CHAIRMAN: The motion is agreed to? (Agr eed) On the same page. HON. R. PENNER: Yes, on Page 6 of the circ ulated amendments.

I move THAT subs ecti on 35(5) Bill 16 be struck out and the following subsection be subst itut ed ther efor: Appea ls from order or action of munici pality . 35(5) A person who feels aggrie ved by an order made or action taken by a municipa lity under this

section may appeal therefrom to a judge of the Court of Queen's Bench within 30 days from the making of the order or the tak ing of the action, as the case may be, and the judge upon hearing the appeal may confirm the order or direct the munici pality to vary or rescind the order and may giv e such further di rection in respe ct of the order and such di rect ion in respe ct of the action, as to damages or other wise, as the judge deems proper . MR. CHAIRMAN: Motio n agreed to? (Agr eed) Page 25, as amended -p ass; Page 26- pass. Page 27. HON. R.

PENNER: I move THAT subsection 39(1) of Bill 16 be amended by striki ng out the word "the" wher e it appears for the 3rd time in the 1st line of clause (

c) thereof and substit uting therefor the word "each". MR. CHAIRMAN: Motio n agreed to? (Ag reed ) The Member for Pembina. MR. D. ORCHARD: Mr. Chairma n, I may have missed it, but did we pass the amend ment to

section 35(3)? MR. CHAIRMAN: Yes. MR. D. ORCHARD: Good. MR. CHAIRMAN: Page 27, as amended-pass; Page 28 - motion. HON. R. PENNER: I move THAT the definitio n of "her itage obje ct" where it appears in ·subsection 43(1) of Bill 16 be amende d (

a) by adding thereto, at the end of sub-clause (iii) ther eof, the word "and"; (

b) by striking out the sub-clause (iv) thereof; and (

c) by ren umbering sub- clause (

v) thereof as sub clause (iv). MR. CHAIRMAN: Page 28, as amended-pass. Page 29 - the Member for Pembina. MR. D. ORCHA RD: Mr. Chairman, just prior to the moving, under the "human remains " does the defi nition of human remain s, the last li ne of it , "in respect of which th ere is some manner of identifyi ng the persons buried ther ein " does that definition conclusively include

Wednesday, 10 July, 1985 only unident ified human remains? In other words, human remains that are not identifiable by any markers, so tha t we've got comp letely un atta ched hu man remains , if th at's the proper terminolo gy. I kno w the Attorne y-General will come up with a better than unattached human remains. HON. R. PENNER: No, I kn ow what you mean, human remains which no one claims or might clai m. MR. D. ORCHARD: Is that defi nition sufficient? HON. R. PENNER: it ha s to be consis tent with pro visions in The Cemeteries Act tha t deals with . HON. E.

KOSTYRA: Does not cover th ose tha t are cove red by The Cemeteries Act. HON. R. PENNER: That's what I mean. MR. D. ORCHARD: Ok ay, can I ask the Min ister a question? Over the past number of years I've had interest expressed to me about cadavers in York Factory tha t are pr eserved becau se they are bur ied to perm afrost and some of th em, with erosion, have been exposed . HON. E. KOSTYRA: They haven't been exposed; that's incorrect. MR. D. ORCHARD: Do the y fall under this defi nition of "hum an remai ns" or are the y ident ified ? HON. E.

KOSTYRA: Operative words - th ey again, dis covered outside a rec ogn ized cemete ry. Th ose remains tha t the mem ber 's refer ring to are in a recog ni zed cemeter y and just to cor rect the record, they are not exposed. Some of them ha ve been dis turbed because of ground shift, but none were actually exposed . I went there myself. HON. R. PENNER: I move THAT subs ection 44(1) of Bill 16 be amended (

a) by stri king out the word and figur e "subsection (2)" in the 1st line th er eof and substituting ther efor the words and figur es "subsections (2), (3), (4) and (5 )"; (

b) by adding thereto, immedia tely after the words "muni cipal land" in the 5th line of claus e (

a) ther eof, the words "other than such Crown land or muni cipal land as the Min ister may by regulation exclude from the appli cation of this clause,"; and (

c) by stri king out the words and figur e "su bject to subsection (2) and" in the 3rd last line thereof. MR. CHAIR MAN: Motion agreed to? The Member for Pembina . MR. D. ORCHARD: There are the two classes here . her itage objects found on pri vate property by the owner of tha t pro per ty; heritage obje cts found on Crown pr operty by anyone. Does this sufficiently cover the her itage objects found on priv ate pr oper ty by other 121 than the owner? Wh ere does that amendment come in? HON. E. KOSTYRA: No, tha t's 44(3 ). MR. D. ORCHARD: That is the 44(3) that you're adding on Page 5? HON. E. KOSTYRA: Page 5. MR.

D. ORCHARD: Does tha t amendment cover the ci rcumstance we're describing of a priv ate col lector on pr ivately owned land where he's not the owner? HON. E. KOSTYRA: Yes, su bsect ion (

a) says it' s trans ferable by the person who has the custody. The custody belongs to the landowner. That custody can be trans ferred to any other person at any other time. MR. D. ORCHARD: Wh at's the formal format? An avocat ional archeologist would ha ve permission of the lando wner to go in and th eoret ically search the land? That is sufficient to confer the custody rights and the righ ts of trans feral and beque sting to the avocat ional arch eologist on priv ate land that he does not own? HON. E. KOSTYRA: Corre ct. MR. CHAIR MAN: Page 29, as amended- pass. Page 30 - the Attorney-General. HON. R.

PENNER: I move THAT Bill 16 be further amended by addin g th ereto, immedia tely after su bs ect ion 44(2) th ereof, the followi ng subsection: "Tran sfer of custody. 44(3) The custody of a heri tage object retained under subsection (1) (

a) is trans ferable , by the person who has the custody, to any other person at any ti me; and (

b) upon the death of a person who has the custody, passes to the hei rs, executors or adminis trators of the person; and any tran sfe ree, heir , execu tor or admin istrator so receiving the custody is deemed to be holding the heritage object in trus t for the Crown and subject to any agreement enter ed into under subsection (2) and to the prov isions of this Part." MR. CH AIRMAN: Motion agreed to? The Member for Pembina . MR. D.

ORCHARD: I am pleased to see that the Min ister is willing to forego the Crown ownership after the or iginal owner no longer is with us and ha s allo wed the tr ansferring of heritage objects within families and within circles of collectors or friends as is allowed her e, presu mably under this amendment. One of the more offe ns ive parts of this bill was the automatic presu mption of Crown owner ship. This allevia tes tha t. Crown ownership still overri des and we're not going to persuade this Min ister to ever elimina te that, but this does remedy some of the concerns tha t have been

Wednesday, 10 July, 1985 expressed to the Minis ter and also to myself about the act. MR. CH AIRMAN: Motio n, the Atto rney- General . HON. R. PENNER: I'm going to move that motio n now. MR. D. ORCHARD: We moved the fi rst motio n. HON. R. PENNER: I move THAT subsection 44(3) of Bill 16 be renu mbered as subsection 44(4 ). MR. CHAIRMAN: Motion pass? Pass; Page 30, as amended-pass. HON. R. PENNER: I move THAT

section 45 of Bil l 16 be renu mb ered as subsection 44(5 ). MR. CHAIRMAN: Motio n pass? Pass. HON. R. PENNER: I move THAT Bil l 16 be further amended by add ing theret o, at the end of

section 44 ther eof as her inbefore amended, the foll owing section: "45 The pr oper ty in, and the tit le and right of possession to, any human remains found by any person after May 3, 1967, is and vests in the Cr own." MR. CHAIRMAN: The Member for Stu rgeon Cr eek. MR. F. JOHNST ON: Can we have an explanat ion why this has been amended to be retroactive 18 years? HON. E. KOSTYRA: it's not ret roactive . That is just picking up the pr ovision tha t exists in the old act - I don't have the

section before me - with respe ct to skele tal remains tha t had tha t specific date in The Historic Sites and Objects Act. I can reference the actual

section for the member , if he giv es me a moment.

Section 9( 1) reads in the present act: "The pr oper ty entit led in and to any arti fact or paleontological obje ct found after the 3rd day of May, 1967 is and vests in the owner of the land in or under which it is found ." Oh, I'm sor ry. I .r ead the wrong section. it's

section 19(2): "Pr oper ty and skeletal remains. The proper ty entitl ed in and to any skeletal remains found after the 3rd day of May, 1967 whether on priv ate or publi c pro perty is and vests in the governm ent ." MR. CHAIRMAN: Agr eed? Motio n agreed . Motio n? The Attor ney- General . HON. R. PENNER: I move THAT

section 46 of Bill 16 be amended (

a) by add ing ther eto, immedia tely after the word "o bject" in the 2nd line ther eof, the words "or remains tha t are or that the person beli eves to be human remain s"; and (

b) by add ing thereto, immedia tely after the word "obj ect" in the 4th line there of, the word s "or the remains". 122 MR. CHAIRMAN: Motio n pass? The Member for Pembina. MR. D. ORCHARD: The Minister, in closing deba te on second reading, indicated cert ain thi ngs. Could the Minister ind icate to me whether this clause as amended req uires an ind ivid ual who happens to be strolli ng down a back lane and finds a spearpo int or an India n arrowhead that he must report tha t? Wher e is the excepti on the Minister claimed existed in tha t example tha t I used? HON. E. KOSTYRA: The techn ical definition would include what is being suggested by the mem ber . Actually, this

section is pretty well the same as it was in the previ ous act. lt requi red the repo rting . The intention is to deal wit h those only tha t are in an undis turbed state, in situ state . So there is no intention to deal wit h the pieces tha t may be picked up that have already been in areas tha t have been bowed over or si gnifi cant ly dis turbed. MR. D. ORCHARD: Mr.

Chairma n, cont rary to what the Minister said in closing debate on Page 3559 where he said it was not int ended by the pr ovi sions of this act to have someone walking down a farm lane one day and find ing an arrowhead to be in contravent ion of this act, indeed it is in cont ravent ion of this act, because there is no specif ic exclusion for the example I used and the Mi nist er said was not the intention of the act. That, ind eed, is the total scope tha t this act encompasses. This

section does not say undist urbed archaeo logical sites or In dia n campsi tes. This just says any person who finds an obje ct tha t is a heritage obje ct ". . . shall forthw ith repor t the find to the mini ster and shall not hand le, dis turb or do anything to the object except in accordance with such req uirements as the minister may prescri be." That incl udes everyt hi ng, and it in cludes the example that I gave you. The intent may be nob le, but the legisl ation doesn't state the in tent .

The legis latio n in cludes, if the Honourable Mini ster of Highways when he's inspecting one of his hig hways jobs in Northern Mani toba, because he isn't doing any in southern Mani to ba, would pick up an arrowhead from the borr ow pit, he would be in cont ravent ion of this act. We could nail him for $5,000- a-day every day he had that arrowhead in his pocket. HON. E. KOSTYRA: The last part of that

section ind icates: "e xcept in accord ance with such req uir ements as the minister may prescribe." That will be the ki nd of th ing tha t will be covered under the reg ulations and pr ocedures. MR. F. JOHNSTON: For the Mini ster and the Attor ney General, the word "o bject" - we've been sitting down in this corner maybe snickerin g or jok ing a bit , but "o bject" is everyt hi ng. Does it in clude my grand mother 's cast-i ron plate tha t she cooked on in 17-someth ing in Mi ami, Manito ba? Does it in clude my grandfather 's stiff collar box, round collar box?

Don't we have a better desi gnate than the word "ob ject"? Can the Atto rne y-General just explain to us? This is a pretty broad word, and anyt hing basical ly

Wednesday, 10 July, 1985 that's over 100 years old can become a her itage obje ct under this particular section. How do people kno w? MR. CHAIRMAN: The Attorney -General has the floor . MR. F. JOHNSTON: He's out of order . HON. E. KOSTYRA: Page 28's defi nition is in

section 43( 1). MR. CHAIRMAN: The Member for Pembina. MR. D. ORCHARD: Mr. Chairman , it can include all the things th at the Mem ber for Stu rgeon Creek alluded to. HON. E. KOSTYRA: Only by designa tion . MR. D. ORCHARD: Right, by desig nation and, once again, without compensation. HON. R. PENNER: Not necessarily . MR. CH AIRMAN: Page 30, as amended- pass. Page 31- pass. Page 32 - the Attor ney-General. HON. R. PENNER: I move THAT

section 50 of Bill 16 be amended by adding ther eto (

a) immedia tely after the "ob jects" in the 2nd li ne ther eof; and (

b) immediately after the word "o bject" in the 2nd last line thereof; in each case, the words "or human remains ". MR. CH AIRMAN: Motion- pass. Ano ther motio n? HON. R. PENNER: Yes, anot her motion , THAT

section 51 of Bill 16 be amended by adding thereto, at the end thereof, the words "or any human remain s". MR. F. JOHNSTON: Is that right? Sect ion 51: "No pers on shall destro y, damage or alter any herita ge object, whether or not the person is the owner ther eof," and th en "hu man remains"? Should tha t not be after "obje ct"? HON. E. KOSTYRA: Yes, it is corr ect . HON. R. PENNER: Should we take tha t motion? HON. E. KOSTYRA: No, tha t is corre ct . No person is the owner of human remains , so it does have to appear at the end. MR. CHAIRMAN:

Section 53. HON. R. PENNER: I move THAT Bill 16 be further amended by adding th ere to, (

a) immedia tely after the word "o bjects" in the 2nd lin e of

section 53 there of; and 123 (

b) im mediately after the word "r esources" in the 6th line of subsection 59(3) ther eof; in each case the words "or human remains". MR. CHAIRMAN: Motion agreed to? (Ag reed ) The Mem ber for Pembina. MR. D. ORCHARD: Mr. Chairman, a couple of points on sections 52 and 53. I happen to know an in dividual who from time to time will carry a group of arrowheads in a snuff tin in his shir t pocket , and trav els from time to time to Al berta. MR. F. JOHNST ON: Is the snuff tin an obje ct? That 's what I want to know. MR. D. ORCHA RD: They may like it too and declare it.

But at any rate, when that is in his pocket, he is expor ting presumably herita ge objects. Does he have to get a permit to take his snuff tin full of arro wheads from Manitoba to Al berta under this act? HON. E. KOSTYRA: No. MR. D. ORCHARD: So the clause which says: "No person shall rem ove a heritage obje ct from the provi nce," tha t isn't in viola tio n of that? HON. E. KOSTYRA: I presume you were suggesting that ind ividual is retu rning from Alberta. MR. D. ORCHARD: But it doesn't say, no person shall remove and then return later. lt says, no person shall remove. HON. R.

PENNER: You would have statutes 500 pages long if you di dn't put it into the context of the meaning of words legally. - (In terject ion) - We ll, not unless we're going to do it in Arabic. No, the re has to be what is called the animu s ferand i; tha t is, wit h the intent to take them out permane ntly. MR. J. DOWNEY: lt cont ravenes the Charter of Rig hts and Freedom of Movement . HON. R. PENNER: That, too. HON. E. KOSTYRA: No, it doesn 't. MR. CHAIRMAN: Motion agreed to? The Member for Pembina. MR. D. ORCHARD: No, not yet. Mr.

Chairma n, I agree that the Attorney- General would ha ve to have very large statutes to qual ify ever yth ing but, technic ally, the re will be technical viola tio n of this clause. In 53, no person shall search. Wha t's the definition of search? Wha t is the context of search? HON. E. KOSTYRA: "L ook for," according to the English dict ion ary, I bel ieve. MR. D. ORCHARD: If I'm out pick ing stones in some of my fields and I pick up an arrowhead , is tha t search?

Wednesday, 10 July, 1985 HON. R. PENNER: No, you 've been sear ching for ston es, you haven 't been searching for a herita ge obje ct. MR. D. ORCHARD: This is just one of tho se happ en chance things, once in a li fet ime oppor tuniti es. HON. E. KOSTYRA: This is the same pro vision that's existed si nce 1967 and the obvious intent is if somebody is actively going out and search ing for those thin gs. If the member wants to pick away at his boulders he will not be in cont ravention of this act. MR. CH AIRMAN: Page 32, as amended- pass; Page 33, as amende d- pass. Page 34 - the Member for Pembina . MR. D.

ORCHARD: On Page 34, ther e was some concern expressed last nigh t about the prio rit y of filing. Why does the Min ister consider it necessary to have fil ings under this act take prec edent over li ens on prope rty, first mortages on prope rty, etc., etc.? HON. E. KOSTYRA: lt doesn 't take precedence over li ens or mortga ges, it's jus t the not ice takes precedent, but the re 's no financial req uir ement with res pect to the notice. MR. D. ORCHARD: Could the Attorney -General explain the meaning of this clause and why it's necessary? HON. R. PENNER: Which clause? MR. D. ORCHARD: 57. HON. R.

PENNER: Fi rst of all, what we're talking about is, in effect, a notic e and we're sim ply saying tha t, supposi ng the notice is filed as the thir d instrument appe aring on the back of the title - there' s a mortage and a mortgage of a mortage and then the noti ce - we'r e simply sayi ng that tha t notic e is as bin ding on the hol der of the mortgage, or the mortg agor of the mortgage, as much as if that not ice had been filed fi rst, in sequence. lt just binds all int erests, tha t's all, as notice. lt doesn 't adversely affect the mortgage as a mortgage.

Suppos ing that the mortgage e under the mor tgage, exerci sing his or her righ ts under tha t mortgag e, took the land in mortgage sale pr oceed in gs, they would take it with the noti ce and they could say, I'm not bound by the notice because my mortgage was on the back of the title fi rst, th at's all. MR. CHAIRMAN: Page 34, as amende d- pass; Page 35- pass; Page 36, as amended- pass; Page 37- pass. Page 38 - the Attorney -Gener al. HON. R. PENNER: I move THAT

section 67 of Bill 16 be amended (a) - no, this will be on the next page. MR. D. ORCHARD: Why do you have

section 63 in ther e? HON. R. PENNER: it's reall y standard in so many pieces of legislation for very good reaso n. but it is qualifie d 124 by the good faith provision in the third-la st line so tha if, in fact , anyone acts, a Min ister or official , in bac faith, then they can be the subject of an action. it's to preve nt frivo lous actions really which peoplE would take to court and could end up in length) pr oceedings where, in fact, someone who is just actin� und er the act and in good faith . Mo st of thosE pr ov isions, they'r e prov isions which we might want tc review somewhere down the line.

Many of the situatiom which are covered by these sorts of things are rea ll� dealt with now more and more by the activities of the Ombudsman. MR. CHAIRMAN: Page 38- pass; Page 39- French amend ment . Motion? The Attorney -Ge neral. HON. R. PENNER: Fi rst of all, there are two in the one motion. I would like to do them together because they're just language motions. I move THAT the French vers ion of Bill 16 be further amended by adding ther eto, immedia tely after the word "loi" where it appears (

a) in the 2nd lin e of

section 67 ther eof; and (

b) in the 2nd line of clause 68(

a) thereof; in each case, the words "et conformes a son esprit ". MR. CHAIRMAN: Motion agreed to? Pass. The member for Pembina . MR. D. ORCHARD: Mr. Chairman, under reg ulation 68(

a) has the Min ister got a fee

schedule and, if so, will the permit be an ongoing perm it? HON. E. KOSTYRA: Can we pass 38 first? MR. D. ORCHARD: Yes. MR. CH AIRMAN: Page 38, as amended-pass. Page 39. HON. R. PENNER: Just on a point of order , just before we get to 68, I do have an amendment to 67 jus t after (c). I move THAT

section 67 of Bill 16 be amended (

a) by adding thereto, immedia tely after clause (

b) ther eof, the following clause: "(

c) excluding cert ain Cr own land or municipal land or both, as de scr ib ed in the re gula tions , from the appl icat ion of clause 44(1)(a )"; and (

b) by ren umbering the present clause (

c) ther eof as clause (d). MR. CHAIRMAN: Motion agreed to? Page 30, as amended - the Member for Pembina . MR. D. ORCHARD: Has the Min ister es tabli shed what his fee sched ule and what the permit is going to be? I would make a suggestion to the Minis ter. Is he going to do this by regulation - that a permit be for more than an annual basis so you don't have people and your staff tied up unnecessarily renewing permits every year or whatever, tha t a permit be for a reasonably

Wednesday, 10 July, 1985 long tim e? Has the Minister any idea of the kind of fee sched ule that he would propo se? HON. E. KO STYRA: I th ink the fi rst is a good suggestion. In terms of the second quest ion, yes, it's not intended to have any fee sche dule at the present time . MR. CHAIRMAN: Motio n- pass. Page 39, as amended - the Member for Pembi na. MR. D. ORCHARD: I guess here is where the cost of rest ora tio n comes in in 69(2). I would just ask the quest ion once again. We went through the dis cussion earlier on. I just want the assurance that if it's an inadver tent act and the Mini ster has used

section 12(2) where he has reason to believe has gone in, any damages prior to him going in and issu ing the stop order would not fall under the 69(2)

section here. HON. R. PENNER: That is right. MR. CHAIRMAN: Page 39- pass; Page 40- pass; Pr eambl e- pass; Title - pass. Bill be repor ted . BILL 8 - THE AMBULAN CE SERVICES AC T·

LOI SUR LES SERVIC ES D' AMBULAN CE MR. CH AIRMAN: Bill No. 8, page-by-page. Pages 1 to 14 were each read and pa ss ed; Pream ble-pa ss; Title - pass. The Member for Pemb ina. MR. D. ORCHARD : Mr. Cha irma n, I just want to remind the Minis ter tha t he had some suggesti ons made to him on how to make this act more workable. The Manitoba Associa tio n of Rights and Li berties made some of tho se points yesterda y - not all of them did the committee concur with on questioning . The Minister has seen fit not to recogniz e some of the problems tha t were ide nt ified, and passed this act as presented. MR.

CHAIRMAN: The Honourable Minis ter. HON. L. DESJARD INS: Mr. Chairma n, we've checked every sing le one of them, and we feel tha t there are no pr oblems. Some of it was misundersta nd in g on the part of the people tha t made the presen tatio ns. Other areas, we couldn't see any problem at all . So we did n't deem fit to bri ng any amend ment in this bill. MR. CHAIRMAN: May the bill .be reported? BILL 17 - THE TRANSBOUNDARY POLLU TION REC IP RO CAL AC CESS AC T;

LOI SUR LES DROI TS DE REC OURS REC IP ROQUES CO NTRE LA POLLU TIO N TRANSFRON TALIERE MR. CHAIRMAN: No. 17, The Trans bound ary Poll utio n Recip rocal Access Act ;

Loi sur les dr oits de reco urs reci proq ues cent re la pollu tio n tra nsfr ont alier e. Page-by-pa ge. Page 1- pass; Page 2- pass; Page 3- pass;

Preamble-p ass; Title - pass. Bill be reported. 125 BILL 18 - THE HIGHWAY TRAFF IC ACT; LE COD E DE LA RO UTE MR. CH AIRMAN: Bill No. 18,

An Act to amend The Hig hway Traffic Act; Loi modifia nt le code de la route. Pages 1 to 5 were each read and passed . Page 6 - the Honourable Attor ney- General . HON. R. PENNER: I move THAT Bill 18,

An Act to amend The Highway Traffic Act, being

chapter H60 in the Continu ing Consolid ation of the Statutes of Manitoba , be amended by strik ing out

section 21 th ereof and substitut ing ther efor the follo wing section: Commencement of Act. 21(1) This act, except sections 3, 6, 7, 15, 16, 17, 18, 19 and 20 come into force on the day it rece iv es the Royal Assent . Pr oclamation. 21(2) Sect ions 3, 6, 7, 15, 16, 17, 18, 19 and 20 come into force on a day fixed by proclamation. MR. CHAIRMAN: Motio n agreed to? (Agreed) Pre amble- pass; Title -pa ss. Bill be repor ted . BILL 19 - THE HIGHWAY TRAFFIC ACT (2); LE CO DE DE LA ROUTE

(2) MR. CHAIRMAN: Bill No. 19 - the Member for Pembina. MR. D. ORCHA RD: Mr. Chairma n, every br ief tha t was pr esented to dis cuss Bill 19 poin ted out erro rs, omis sio ns, problems; tha t this act, the amendments in it, were not in concert with the dis cussi ons with the various group s tha t were here yeste rday to pr esent brie fs. A nu mber of amend ments were req uested .

Each of th ose presen ters, with the exceptio n of one, if my memory serves me correctly , said th at there would be noth ing changed if this act was withd rawn and brought back after the Mi nister has had an opp ortunity to do his homework prop erly and bri ng in legisla ti on that is in agreement with the dis cussi ons tha t he has had with the various interest groups in the truck ing ind ustr y. So, Mr.

Chairma n, I bel ieve tha t this Minister , when he has no public support from the organiza tions wit h which his dep art ment has worked for over three years in dr afting some of these amend ments, wherein he is going to have a patchwork series of amend ments tha t are not desirab le, not work able and have proble ms, I jus t suggest that we pr oceed no further with this bill and that the Minis ter withd raw it and we proceed to Bill No. 36. HON. J. PL OHMAN: Mr. Chairma n, we've had a great deal of con sulta tio n and excellent support from many.

I know tha t pr esenters yeste rday did not spend time on th ose sect ions tha t the y felt that they could supp ort and they did point out some concerns that they had in some areas. I just want to clar ify that the presenters deal ing with the matter of the dump truck operato rs, curr ent ly reg ister ed as T-pla ted vehicles and requir ed to reg ister tho se with PS Vs, is not giv en effect in this bill. That is pro posed by regulatio n, and no change made in this act will affect their opera tio ns at the present ti me.

Wednesday, 10 July, 1985 So I want to make tha t very clear , that any repre sentation th ey were making, in effect, then was out of ord er. What the y were reacti ng to is Page 6 of the Whi te Paper which notes, under Changes and Regulation, that the governme nt has announced its intent to change the reg ulation 231 73 with regard to trucks in that catego ry, and that they would be required to register as PSVs, as opp osed to T -plated trucks.

That has not been done and , as a result of the presentations tha t were made yeste rday and fur ther cons ultation that we will undertake, we will decide in the futur e as to whether tha t regul ation should be changed , but it is out of order to discuss it under any amend ments to thi s act at the present tim e. So that problem has been add ressed in tha t way. We do have an amendment deali ng with the farm truck question, so tha t wil l be dealt with. The only other conce rn tha t was raised was with regard to the req ui rement to have minimum rates set under certain cir cumstances by the board .

Of course, we wil l establish guideli nes and worki ng in consultation with the trucki ng association and other affected groups we'll make those provisions in the future. So that

section would not be procla imed initially. So we've cove red all those. Maximum rates is what the trucki ng association wanted , it reflects a sit uation out there that exists at the pr esent time, that there are negotiated rates below the fixed rates tha t are required to be fi led now by all trucki ng companies who have author ities in the pr ovince. If the y set a rate that is di fferent they have to file it wit h the board and it is publi c knowl edge. So we are not changing anything in terms of the practice the re, it is recogn izing a practice that is there.

But in th ose cir cumstances where predatory pricing or non-co mpensat or y pricing does take place and it is determi ned , as a resu lt of guideli nes set up, that it is not in the publ ic interest the n, of course, the board would have tha t power to set minimum rates and to requi re cert ain inf orm ation to be brought forward to the board . I thi nk we have addressed all of the concerns tha t have been raised and , of course, reject the suggestion by the member. MR. J.

DO WNEY: I have a difficult time in agreeing with the Mini ster when he indicates tha t he has put everyone 's concerns to rest and that only two, in fact, were in opposition. I' ve got yesterday's list of indiv id uals who oppo sed his amendments. The Minister has not been able to demonst rate to this committee anyone who is reall y suppo rtive of what his amendments are.

In fact , the Pr esident of the Mani toba Tr ucki ng Association indicat ed tha t ther e should be another six months to take a look at thi s and to make sure tha t par ti cularly the smaller carriers in rural Mani toba have more commodi ties to car ry, rat her than less, and tha t they can see some di ffic ulties the re. The di rect or of the heavy const ruction indicated tha t the main obje ctive that appeared to him and to his asso ciation was tha t the main pu rpose of the government 's move to make amend ments was to gather some $4 million to $5 million in addi tional lice nsing fees.

The points ha ve to be brought forward by the vege table prod ucers of this pr ovince who are already 126 in a very delicate sit uation as far as their oper atiom are concerned and the competition that they face frorr outside of this country and could , in fact, im pose undue hard ship on rest ricting the movement of one nei ghbour to the other hauling different commodi ti es. The point brought forward by the member of the Insu rance Agents Association of Mani toba and , Mr.

Chairman, the Minister, in my estim ation and in the estim ation of my colleagu es, has not been able to demonstrate the need for the amend ments to thi s act at this parti cular time because he does not have the supp ort of the in dustry. I am, Mr. Chairma n, not going to stand by and let him pro ceed without giving him some diffi culty in thi s matter . I don't thi nk he has been able to pr ove or to demonst rate to us wit h what he is prop osing toda y he has significant ly changed the intent of what he is up tod ay. HON. J. PL OHMAN: If you wanted specific questions, I'll deal wit h them. MR.

CHAIRMAN: The Member for River Heights. MR. W. STEEN: Yes, Mr. Chairma n, I have a que stion to the Minis ter and it arises from the presentation yeste rday by Mr. Creek, an ind ependent in surance agent, where he made reference to the fact that farmers would be inconvenienced when they would have to change their plates from farm use to commercial use and the y couldn't buy from a local agent , they would have to go to a depart ment licensing outlet. Has the Mi nister and his depar tment considered Mr.

Creek's concerns not from an ins urance agent 's point of view but the inconvenience to the public and to the truck owner? HON. J. PL OHMAN: Mr. Chairma n, we have dealt with that probl em, and the pr oposed amendment tha t we have in that area would , we feel, take into consideration not only the agent 's concerns in tha t they would not be affected by anyt hi ng in this act, and as well it would take int o consider ation the presentations made by the vege table gr owers and the Keysto ne Ag ri cul tural Prod ucers.

As I said earlier, the concerns raised by the dump truck operators were not valid because they are not specifi cally dealt with by this act. In fact, they are dealt with under Regulation 231(73 ). We have outlined in the Wh ite Paper tha t was our intention to change that regulation. That is wher e they would be affected if we were to go forward with it, but that is not on the table here. MR. D. ORCHARD: Well, Mr.

Chairman, the Minister has tried to defend an inco mpetent piece of legisl ation brought forward by a Minister who didn't understa nd what he was doing and by a Minister that in the House pr ided him self on mon ths and indeed ye ars of consultation wit h the ind ustry. Presentation after presentation yesterd ay, he said that I don't know how, after our consultations, this piece of legislatio n, th is amend ment comes int o Bill 19 because it was not the subject and the understanding we had of where we were going in our discuss ions with this Mini ster in terms of amend ments to the act.

Wednesday, 10 July, 1985 So, Mr. Chairman, this Min ister now toda y is tel ling us tha t the concerns aren't there, the concerns aren't real , tha t the concerns that all these people and everyone of them was agains t this legisla tion. ever yone of them said this legisla tion if not passed would not affect one iota of the cu rrent trucking business in Manitoba. But if passed, they poi nted out a number of problems. Thos e problems ar en't add ressed by the amendment that the Min ister passed out.

He has not obviously done his homework with the se people to make sure tha t the amend ments will not adversely affect the indus tr y_ He has not done his job as a Minis ter of Highways and Transpor tation should do to assure that amendments to The Highway Traffic Act will enhance the oppor tuni ty for economic activity in the truck ing ind ustry in the Pr ovi nce of Manitoba for the creat ion of emplo yment, for the bett erment of the truck ing industry not only for the employees and the people in the ind ustry but for the customers of the truck ing indus try.

All of tho se things this Min ister has not done_ And he comes here this morning saying to us, well, you kno w, we should pass this anyway because certain sections of it tha t we have to work out, well, we'll procl aim them later and we'll do our negotia tions tha t he told us one week ago tha t he had done, tha t he had completed with the truck ing indus tr y, with various groups and organ iza tions impa cted on by this legisla tion. Now he is tel ling us, we'll pass it toda y and then, of course, we won't proclaim it until we have done our negotiations tha t he always said he had done.

That is sheer nonsense, Mr. Chairman. This Min ister once again has demo nst rated his in com petence to bring forward legsia tion tha t is workable, tha t has the agreement and the support of the major players in the indus try. He has done so without consulta tion, and where he has had consultation he hasn 't lis tened . That was told to us time and time again yesterda y by presenters of brie fs to this legisla tion. He is sitting here this afternoon now telling us tha t we sho uld pass this pie ce of incomp etent legisla tion.

I remind the mem bers of the committee once again that each person who presented a br ief in opposition to Bill 19 was asked whether the fai lure to pass this bill will impact negatively on their ind ustry and on The Highway Traffic Act. Each one of them said no, we can do without it; a number of them said wait six months and get the negotia tio ns done, have the meetings, esta blish the criteria and then pr oceed with the amendments, don't do it now because the y are going to be detrimental.

Why is this Min ister being so perverse and in sis ting we deal with this legislation now and pass it, when he hi mself has admitted alr eady tha t he isn't going to procl aim certain sections of it because he hasn 't done his ho mework? This bill should be withd rawn, Mr. Chairman. HON. R. PENNER: I was just goin g to suggest, Mr. Chairman, that ther e are two occasions on which the kind of debate th at we are entering in to now might be better focused : one is when we come at this stage to bill be reported ; and seco ndly, of course, on thir d reading might perhaps be useful.

I rais e this as a suggestion rather than as a formal point of order if we went clause-by-clause, if the 127 members wish, and specific points be rai sed , the Minis ter has an amendment; and then at the end, if the members want to formally put a motion on the record th at the bill not be reported , then we'll deal with it. We are front ending what might better be a discussion at the ver y end when we see what amendments in addition to that prop osed by the Min ister are propo sed and dealt with. MR. CHAIRMAN: There are certain rules tha t we have to adhere to in consi dera tion of this bill in commit tee.

I would like to read them to you. "Section 763. Function of a Committee on a Bill. The function of a commit tee on a bill is to go through the text of the bill clause by clause and, if necessar y, word by word , with a vie w to making such amendments in it as may seem lik ely to render it more generally accept able. "S ection 768.

(2) The deba te on Clause 1 (if it is not the sh ort title) is normally wide ranging, covering all the princ ip les and details of the bill. "Section 764.

(1) A committee is bound by the decision of the House, given on second read ing, in favour of the principle of the bill, and should not, ther efore, amend the bill in a manner destruct ive of this principle_ "Sec tion 764.

(4) An amendment which is outside the scope of the bill is out of order and cannot be enter tai ned , unless a special In struction has been gi ven by the House to the committe e." Our function in this commit tee is to go through the bill clause-by-clause or page-by-page or, if necessa ry, word- by-word , and to amend the bill if necessar y. The principle has been debated already in second read ing. The Member for Pembina. MR. D. ORCHA RD: Mr. Chairman, I may have to make this a point of order , so you don't rule me out of ord er. If I have to, I wi ll.

Wh at we are tryi ng to do her e is avoid a delay of this committee in the dying hours of this Session. The Min ister has one amendment and all the other presenters drew problems to his atte ntion which he has not resolv ed. If we go clause- by-c lause, we will end up in exactly the position the Attorney -General has said in which we will have the wide ranging date for this Min ister to pull it because he hasn't addressed the concerns of th ose pres enting br iefs at the comm it tee.

We want to save this committee time by not going clause-by-clause, deba ting the ina dequa cies and the fai lures of your Minis ter and embarrassing him - we simpl y want him to pull the bill right now and save time and move onto another bill. We can do it the way the Attorney-General wants and be here two hour s from now, still talking about Bill 19 and an incom petent Minis ter. We want to save the Minis ter this embarras sment; we want him to pull the bill right now. HON. R. PENNER: Do you want be here two weeks from now; we'll be here two weeks from now, but let's pro ceed in a way in which ... MR. D.

ORCHARD: We will be. Your choice.

Wednesday, 10 July, 1985 HON. R. PENNER: But all I'm sayi ng, tryi ng to avoid the rhetoric and the lather in to which the member s worked themselves up into, there are rules. That's all I'm sayi ng, let's follow the rules; let's consider clause by-clau se. If at the end of that, somebody wants to make a motion that the bill not be repo rted , presumably since that's the final moti on, they can do so. We will have a vote and then the rest of the debate can be carried on in the House. MR. CHAI RMAN: Page 1 - The Member for Pembina. MR. D. ORCHARD: Wha t is the purpose of

section 2(2)(a), for the exemption for certain trucks? HON. J. PL OHMAN: Mr. Chairman, with the (2) (

a) it provides for the defi nition of a commercial truck and outli nes clearly which trucks are exempted from tha t catego ry. it's a rather un usual situation in tha t "commercial truck " is defined by exemption, but there are certain exem ptions from the category and it dealt with cert ain dis tan ces oeing provided from cities and towns and, as wel l, provided for some certa in exemptions that were rather ambiguous I should say, with regard to th ose used for sand and gr avel, for highw ay purpo ses.

Then ano ther ambiguous one, as well, which said that the board, after the exami nation of the ci rcumstances certifies in any year , is not to be reg ula ted either as a public service veh icle or a commercial truck in tha t year . it's rat her a red undant provisi on. There are provi sions in other sections of the act tha t allow for exemptions to the commercial truck in the PSV catego ry.

Sect ion 286, under the revised act does provide for exemptions and ther efore we feel that this is not necessa ry. it's simply a matter of pullin g th ose two sect ions out of the defi nition for commercial truck and prov iding for exemptions under another

section by regulation under

section 286; that regulation is 231 73 at the present time that covers the sand and gravel matters. As a matter of fact, the dump-truck operators stated yesterday tha t they didn't feel that par ticula r commod it ie s should be desi gnated as to what their use is for, or where they' re going - end use.

In this particular case, we have a clause that says it's for publi c hi ghway use and the y would agree tha t that should not be in there, the end use should not be designa ted, and in the regulation 231 73 that is in place, it makes pr ovisi ons for exem ptions for the transpor tation of gr avel or sand and does not stipu late the use.

So it's already there, and it's not necessary to have it in this par ticula r clause. it does not change the licensing req uirements for the dump-truck operators 128 of itself, this move. it's only change is to the regulation 231 73 if we were to undertake those as ind icated in the White Paper that would cause any change to the li censi ng req uir ements for dump-truck operators. MR. D. ORCHARD: We ll, Mr. Chairman , under

section A, we've got mention of campers or luggage and eq ui pment of a tourist. Now is the Min ister sayi ng that under the present act, someone in the Cit y of Wi nnip eg who has a half ton truck or a th ree-quar ter ton truck here, licensed as aT -pla te or possi bly aC T and he's using it for his vacation, that that is now exempted ? Is tha t the natur e of this, that they were subject to fine before? HON. J. PL OHMAN: This is simply re nu mbering, relette ring of the present prov isions. We 're not making any change there and the Member for Pem bina should look cl osely at the present act and the act as we're propo si ng it. There are no changes in that

section whatsoever from the present situati on. The only changes are with regard to su bsections 4 and 5. Ther e is no pr ovision whatsoever for any changes from the current provisions, for tho se other subsections. MR. D. ORCHARD: Wel l, Mr. Chairman, just before we close. If that's the case, then why did they rewrite the section? Why didn't they just say that the number is chang ed from such to such, if ther e's no change in the wording of the section? This is in competent. HON. J. PL OHMAN: The point is, this is the way the legislation is drafted, where there are changes, the whole

section is rewritten with tho se changes ind icated in the act. That's the way it's been drafted . MR. D. ORCHARD: So now you are sayi ng there is a change in tha t legisla ti on. HON. J. PL OHMAN: I said there is a change with regard to su bsections 4 and 5 only. The other pro visions are not chan ged at all, and I said tha t very clearly. There is no change except for subsections 4 and 5. MR. D. ORCHARD: You did not. SOME HONOURABLE MEMBERS: Oh, oh! MR. CHAIRMAN: The committee shall meet at 8:00 p.m. Commit tee rise. COMMITTEE ROSE AT: 12:32 p.m.

Document details

Collection	Manitoba — Debates (Hansard)
Citation	32-4-sro5
Type	hansard
Volume / chapter	32nd 4th hansardpdf sro5.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	97abd96e71870b2be91fc7a15358018ccd660a4e

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