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The Shellmouth Dam and Other Water Control Works Management and Compensation Act (Water Resources Administration Act Amended)

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S.M. 2008, c. 28

Bill 27, 2nd Session, 39th Legislature

The Shellmouth Dam and Other Water Control Works Management and Compensation Act (Water Resources Administration Act Amended)

(Assented to June 12, 2008)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. W70 amended

1           The Water Resources Administration Act is amended by this Act.

2           Section 1 is amended by adding the following definitions:

"artificial flooding", in relation to a given event, means flooding of a water body

(a) that is caused by the operation of a designated water control work, or the operation of a designated water control work and one or more other water control works, and

(b) whereby the water body exceeds its unregulated level at the time of the event; (« inondation artificielle »)

"damage", in relation to eligible property, means that the property

(a) is physically destroyed, or

(b) due to submersion or physical damage, is rendered inoperable, less useful, less valuable, less productive or hazardous to human or animal health; (« dommages »)

"designated water control work" means

(a) the Shellmouth Dam, or

(b) any other water control work designated in the regulations for the purpose of this definition, not including the "floodway" as defined in The Red River Floodway Act insofar as it relates to "spring flooding" as defined in that Act; (« ouvrage d'aménagement hydraulique reconnu »)

"economic loss" means, subject to the regulations,

(a) wages, salary or business income that a person loses because he or she cannot work or carry on business due to artificial flooding, and

(b) extraordinary costs and expenses of working or carrying on business that a person incurs due to artificial flooding; (« perte économique »)

"eligible property" means, subject to the regulations, property that conforms to the criteria set out in subsection 12.1(2); (« biens admissibles »)

"operating guidelines" means operating guidelines approved by the minister under section 5.1 for a water control work; (« directives en matière de fonctionnement »)

"Shellmouth Dam" means the land and structures described as such in the regulations, including, but not limited to, the dam, spillway, reservoir and riparian outlet; (« barrage Shellmouth »)

"unregulated level", in relation to artificial flooding, means the scientifically demonstrable level that would be expected in the water body at a given time

(a) in the absence of the designated water control work, or

(b) if specified by regulation in respect of the water body, in the absence of the designated water control work and one or more other specified water control works; (« niveau non régularisé »)

3           The following is added after section 5:

Operating guidelines for water control works

5.1(1)      The minister may approve operating guidelines for a water control work.

Minister to have regard to operating guidelines

5.1(2)      In operating a water control work for which operating guidelines have been approved, the minister must have regard to, but is not bound by, the guidelines.

Considerations in approving operating guidelines

5.2(1)      Before approving operating guidelines for a water control work, the minister must consider

(a) the purpose or the multiple purposes, as the case may be, that the water control work serves;

(b) the effect that

(i) operation of the water control work may have on the operation of other water control works, and

(ii) operation of other water control works may have on the operation of the water control work;

(c) the competing needs of persons affected by the water control work or its operation; and

(d) an approved watershed management plan, asdefined in The Water Protection Act, to the extentthat the plan applies to the water control work.

Included or other considerations

5.2(2)      As part of, or in addition to, the matters to be considered under subsection (1), the minister may consider information related to

(a) flood control;

(b) water storage and supply needs;

(c) drainage;

(d) means of minimizing artificial flooding;

(e) the protection and maintenance of fish and wildlife habitat and aquatic ecosystems;

(f) recreational uses;

(g) the effect that different climatological or hydrological conditions in the watershed may have on the operation of the water control work;

(h) uncertainty in forecasting hydrological conditions; and

(i) any other matter that the minister considers relevant.

Public consultation in guideline development

5.2(3)      Except in circumstances that the minister considers to be of an emergency nature, before approving operating guidelines under section 5.1, the minister must provide an opportunity for public consultation regarding the proposed guidelines.

Advisory committees

5.3(1)      The minister may establish one or more advisory committees to provide advice to the minister about water control works.

Role of advisory committee

5.3(2)      An advisory committee is to provide advice to the minister in accordance with directions or terms of reference provided by the minister.

4           The following is added after section 12:

Claims for artificial flood damage and economic loss

12.1(1)     A person may claim compensation under section 12.2 if

(a) artificial flooding has damaged the person's eligible property or caused the person to have an economic loss; and

(b) the person meets any applicable eligibility requirements set out in the regulations.

Eligible property

12.1(2)     A person may claim compensation under section 12.2 for damage to real or personal property caused by artificial flooding only if

(a) the property is damaged in Manitoba;

(b) the person owns the property, or the owner has, by virtue of a lease or assignment, assigned his or her right to claim compensation to the person; and

(c) at the time the damage occurs, all applicable floodproofing criteria in relation to the damaged property or the land, building or structure where the damaged property is located have been complied with.

Eligible economic loss

12.1(3)     A person may claim compensation under section 12.2 for economic loss caused by artificial flooding only if the economic loss occurs in Manitoba and,

(a) in the case of a loss that results from artificial flood damage to real property that the person owns or leases or in which the person resides, only if all applicable floodproofing criteria in relation to the damaged property have been complied with at the time the loss occurs; and

(b) in the case of a loss that results from artificial flood damage to personal property that the person owns or leases, only if all applicable floodproofing criteria in relation to the land, building or structure where the damaged property is located have been complied with at the time the loss occurs.

Exception to eligibility of certain property

12.1(4)     Despite subsections (1) and (2), a person may not claim compensation for damage to a building or structure that was constructed, added to or moved under a variation order under section 17 if the order contained a term or condition prohibiting the owner of the building or structure from receiving flood damage assistance.  A person also may not claim compensation for damage to property located in such a building or structure.

Exception to eligibility of certain economic claims

12.1(5)     Despite subsections (1) and (3), a person who owns, leases or resides in a building or structure that was constructed, added to or moved under a variation order mentioned in subsection (4) may not claim compensation for economic loss that results from damage to the building or structure, or to property located in the building or structure.

Application for compensation

12.2(1)     A person who wishes to claim compensation must file an application for compensation in accordance with the regulations and must comply with the other requirements of the regulations.

Emergency Measures Organization determines claims

12.2(2)     After a person files a compensation application and complies with the requirements of the regulations, the Emergency Measures Organization must

(a) determine whether the claimant meets any applicable eligibility requirements set out in the regulations;

(b) if the claim relates to property damage, determine whether artificial flooding damaged the property and whether it is eligible property;

(c) if the claim relates to economic loss, determine whether artificial flooding caused the loss and whether it is an eligible loss;

(d) assess the value of the damage or loss;

(e) evaluate whether and to what extent the claimant may be entitled to receive assistance or compensation under another program of the Government of Manitoba or Canada or a local government; and

(f) determine the amount of compensation to be awarded under this Act in respect of the damaged property or loss.

Agreements with third parties

12.2(3)     The minister responsible for The Emergency Measures Act may, on any terms and conditions that he or she considers appropriate, enter into an agreement with a qualified person or organization for the performance of any of the functions of the Emergency Measures Organization under subsection (2).

No claimant contribution

12.3(1)     Subject to subsections (3) to (5), a compensation award is to be based on the full value of the artificial flood damage to the claimant's eligible property or of his or her economic loss due to artificial flooding, as assessed by the Emergency Measures Organization, without requiring the claimant to bear a portion of the damage or loss.

Compensation not conditional on repair or replacement

12.3(2      ) A compensation award is not conditional on the claimant repairing or replacing the damaged property.

Claimant's acts may affect compensation

12.3(3)     A claimant's compensation may be reduced in whole or part if the claimant's acts or failure to act allowed the damage or loss to occur or contributed to its occurrence.

Local building restrictions may be considered

12.3(4)     Without limiting subsection (3), and whether or not there are any applicable floodproofing criteria, a claimant's compensation may be reduced in whole or in part if the claimant's failure to comply with

(a) a zoning by-law made by a local authority; or

(b) any other building requirement or restriction imposed by a local authority;

allowed the damage or loss to occur or contributed to its occurrence.

Effect of compensation under other programs

12.3(5)     Compensation under this Part must be reduced to the extent that the claimant is entitled to receive assistance or compensation under another program of the Government of Manitoba or Canada or a local government, including, but not limited to, the disaster financial assistance program, and the Manitoba production insurance program under The Manitoba Agricultural Services Corporation Act.

Appeals

12.4(1)     A person whose application for compensation is partly or wholly refused or who disagrees with any part of a determination, assessment or evaluation under subsection 12.2(2) may appeal to the Disaster Assistance Appeal Board appointed under The Emergency Measures Act.

Appeal to Court of Appeal

12.4(2)     A decision of the Disaster Assistance Appeal Board under subsection (1) may be appealed upon a question of law to The Court of Appeal with leave granted by a judge of that court.

Application for leave to appeal

12.4(3)     An application for leave to appeal must

(a) state the grounds of the appeal; and

(b) be made within 30 days after the date of the decision sought to be appealed, or within such further time as the judge under special circumstances allows.

Notice of the application must be served on the government in accordance with section 11 of The Proceedings Against the Crown Act.

Government to provide compensation

12.5        When a person is awarded compensation because of a determination under subsection 12.2(2) or an appeal decision under section 12.4, the government must provide the person with compensation in the amount awarded, subject to any applicable provisions of the regulations.

No duplication of compensation claims and proceedings

12.6        A person may do either of the following, but not both:

(a) claim compensation under section 12.2 for property damage or economic loss; or

(b) commence court proceedings in respect of property damage or economic loss caused by artificial flooding, to be determined in accordance with generally applicable legal principles.

Report on occurrence of damage or loss due to artificial flooding

12.7(1)     If the minister determines that damage to eligible property or economic loss has occurred due to artificial flooding, the minister must make, or cause to be made, a report that sets out the extent and duration of the artificial flooding.

Time when report is required

12.7(2)     A report must be made within 90 days after

(a) the minister determines that damage to eligible property or economic loss has occurred due to artificial flooding; or

(b) the artificial flooding ends;

whichever is later.

Minister to share and publicize report

12.7(3)     As soon as reasonably practicable after a report is made, the minister must

(a) provide a copy to the minister responsible for the Emergency Measures Organization; and

(b) in accordance with the regulations, make it available to the public and publicize its availability.

5           The following is added after clause 26(1)(f):

(f.1) designating a water control work for the purpose of the definition "designated water control work";

(f.2) describing the land and structures that make up the Shellmouth Dam;

(f.3) for the purpose of the definition "unregulated level", specifying one or more water control works that are, along with a designated water control work, to be considered absent in determining the unregulated level of a particular water body;

(f.4) respecting the eligibility of persons to claim compensation under section 12.1;

(f.5) prescribing a time limit after which a person may not claim compensation for property damage or economic loss caused by artificial flooding, and prescribing other time limits respecting property damage or economic loss;

(f.6) respecting eligible property and economic loss;

(f.7) prescribing categories of persons who suffer damage to property or economic loss caused by artificial flooding, and exempting one or more categories from the operation of any provision of this Act;

(f.8) respecting applications for compensation for property damage or economic loss caused by artificial flooding, the determination and assessment of compensation claims, and the evaluation of claimants' entitlement to assistance or compensation under other programs;

(f.9) respecting compensation for property damage or economic loss caused by artificial flooding, and claims in general for that type of compensation;

(f.10) respecting appeals under section 12.4, including prescribing an appeal fee and providing for circumstances in which the fee may be waived or refunded in whole or part;

(f.11) respecting reports under section 12.7;

Consequential amendments, C.C.S.M. c. E80

6(1)        The Emergency Measures Act is amended by this section.

6(2)        Subsections 17(1.1) and (5.1) are amended by adding ", The Water Resources Administration Act" after "under this Act".

6(3)        Subsection 17(5.2) is amended by adding "The Water Resources Administration Act or" after "decide an appeal under".

6(4)        Subsection 17(5.3) is amended by adding ", The Water Resources Administration Act" after "under this Act".

Coming into force

7           This Act comes into force on a day to be fixed by proclamation.