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S.M. 2002, c. 46
Bill 50, 3rd Session, 37th Legislature
THE RESOURCE TOURISM OPERATORS ACT
(Assented to August 9, 2002)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"accommodation facility" means an accommodation facility of a class described in section 3 that is used or operated by an outfitter; (« lieu d'hébergement »)
"administrator" means the person appointed under section 2; (« administrateur »)
"advisory committee" means the committee established in section 8; (« comité consultatif »)
"appeal committee" means the committee established in section 17; (« Comité d'appel »)
(a) viewing or studying fish, wildlife or a natural area,
(b) recreational or adventure activities such as canoeing, hiking and horseback riding that take place in a natural area, and
(c) any other activity designated by regulation as ecotourism; (« écotourisme »)
"guide" means a person who
(a) accompanies another person and provides direction and expertise to assist that person in locating, hunting, taking or killing fish or wildlife, or
(b) accompanies another person on ecotourism activities and provides direction, commentary or instruction; (« guide »)
"licence" means an outfitter licence issued under this Act; (« licence »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre »)
"officer" means a person appointed as an officer under subsection 21(1) or an officer as defined in The Wildlife Act; (« agent »)
"outfitter" means a person who, for gain, remuneration or reward or the hope or expectation of gain, remuneration or reward, provides two or more outfitting services to others in connection with hunting, fishing or ecotourism activities; (« pourvoyeur »)
"outfitting service" means the provision of
(a) supplies or equipment for use in connection with hunting, fishing or ecotourism activities,
(b) the services of a guide, or
(c) accommodation facilities; (« service de pourvoirie »)
"permit" means a permit issued under this Act to use, operate, construct or modify an accommodation facility or related facility; (« permis »)
"person" includes a partnership; (« personne »)
"related facility" means
(a) a place to store boats, motors, fuel, off-road vehicles, equipment or supplies, or
(b) an ice fishing shelter, warm-up shelter or similar structure; (« installation connexe »)
"vehicle" means a motor vehicle, trailer, tractor, power boat, aircraft or off-road vehicle, or any other vehicle drawn, propelled or driven by means other than human power. (« véhicule »)
Reference to "Act" includes regulations
In this Act, a reference to "this Act" includes the regulations made under this Act.
The minister shall appoint a person from within the department through which this Act is administered as Administrator of Resource Tourism.
The administrator may, in writing, authorize a person to perform any of the administrator's duties or to exercise any of the administrator's powers under this Act.
Classification of accommodation facilities
The following classes of accommodation facility are established:
(a) campground — an accommodation facility where tents, trailers or motorhomes are placed;
(b) lodge — an accommodation facility of a permanent or semi-permanent nature that accommodates nine or more persons;
(c) outcamp — an accommodation facility of a permanent or semi-permanent nature that accommodates fewer than nine persons;
(d) portable camp — a temporary or portable accommodation facility, such as a tent, trailer, motorhome or houseboat.
LICENCES AND PERMITS
Subject to subsection (2), no person shall act as an outfitter or advertise that he or she is an outfitter except under the authority of a licence.
Exception to licence requirement
A person does not require a licence if the only outfitting services that he or she provides
(a) are in connection with ecotourism activities; and
(b) take place entirely on private land.
No outfitter shall use or operate an accommodation facility or related facility except under the authority of a permit.
Permit to construct, establish or modify a facility
Except under the authority of a permit, no outfitter shall
(a) construct an accommodation facility or related facility;
(b) use any existing building or structure as an accommodation facility or related facility; or
(c) expand the capacity of, structurally alter or relocate an existing accommodation facility or related facility.
Application for licence or permit
An application for a licence or permit must
(a) be made in writing to the administrator on a form approved by the administrator; and
(b) be accompanied by the fee specified in the regulations.
Request for additional information
The administrator may require an applicant to submit any additional information or documentation the administrator considers necessary.
No person shall make a false statement in an application or in a document submitted in support of an application.
Advisory committee established
An advisory committee is established to provide advice to the administrator on matters relating to licences and permits.
The advisory committee shall consist of persons appointed by the minister.
Before making a decision on an application for a licence or permit, the administrator shall consult with the advisory committee to obtain its advice regarding the application.
After receiving an application, the administrator may
(a) issue or refuse to issue a licence or permit; or
(b) issue a licence or permit subject to any terms or conditions the administrator considers appropriate.
Factors considered on application
In reaching a decision respecting an application, the administrator shall consider the following factors:
(a) whether the natural resources of the surrounding area can sustain the facility or outfitting service proposed by an applicant;
(b) whether the proposed facility or outfitting service will have a significant negative impact on recreational activities in the area;
(c) whether the past or present conduct of the persons described in subsection (3) affords reasonable grounds for belief that the applicant will operate the proposed facility or outfitting service with integrity and honesty;
(d) whether the proposed facility or outfitting service will conflict with uses established for land or water in the area;
(e) whether the persons described in subsection (3) meet or are capable of meeting any other requirements set out in the regulations;
(f) any other factor that the administrator considers relevant in the circumstances.
Clauses (2)(c) and (e) apply to the following persons:
(a) the applicant, if the applicant is an individual;
(b) the officers and directors of the applicant, if the applicant is a corporation;
(c) a person holding more than 10% of the equity shares of the applicant, if the applicant is a corporation;
(d) all partners of the applicant, if the applicant is a partnership.
Compliance with terms and conditions imposed
A licence or permit holder shall comply with any terms and conditions imposed on the licence or permit by the administrator.
A licence or permit holder shall not transfer a licence or permit without first obtaining written approval from the administrator.
An application to transfer a licence or permit must be made in writing to the administrator on a form approved by the administrator and be accompanied by the fee specified in the regulations.
Power of administrator on application for transfer
The administrator may
(a) approve or refuse an application to transfer a licence or permit; or
(b) approve the transfer subject to conditions which are binding upon the transferee.
Factors considered on application for transfer
The administrator shall consider the factors set out in subsection 9(2) that relate to the proposed transferee when making a decision on an application to transfer a licence or permit.
Change in ownership of licence or permit holder
If a licence or permit is issued to a corporation or partnership and the ownership or control of that corporation or partnership changes in the manner and to the extent prescribed in the regulations, the licence or permit holder shall notify the administrator within seven days of the change, and the administrator may cancel the licence or permit and require that an application for a new licence or permit be made, or take such other action as he or she considers appropriate.
An officer who is satisfied that
(a) the holder of a licence is not providing outfitting services in compliance with the requirements or standards set out in the regulations; or
(b) the holder of a permit is not operating or maintaining an accommodation facility or related facility in compliance with the requirements or standards set out in the regulations;
may, by written order served upon the licence or permit holder, require such measures to be taken as are specified in the order within stated time limits to remedy the non-compliance.
Suspension, cancellation or refusal to renew
The administrator may suspend, cancel or refuse to renew a licence or permit if he or she is satisfied that a licence or permit holder has failed to comply with this Act or an order issued under section 13.
The administrator shall give written notice of the following decisions to an applicant or a licence or permit holder:
(a) the refusal to issue a licence or permit;
(b) the imposition of a term or condition on a licence or permit;
(c) the refusal to transfer a licence or permit or the imposition of conditions on a transfer;
(d) the suspension, cancellation or refusal to renew a licence or permit.
Notice under this section shall be sent by a method that provides the sender with an acknowledgement of receipt.
Notice to include information about appeal
The notice under subsection (1) shall set out the appeal process under this Act.
Refusal of continued operation pending appeal
If, under subsection 20(2), the administrator is not prepared to allow an appellant to continue to operate while an appeal is pending, written notice of that decision must accompany the notice given under subsection 15(1).
A person may appeal the following decisions:
(a) the refusal of an application by that person for a licence or permit;
(b) the imposition of terms or conditions on a licence or permit issued to that person;
(c) the refusal of an application by that person to transfer a licence or permit or the imposition of conditions on a transfer;
(d) the suspension or cancellation of a licence or permit issued to that person;
(e) the refusal to renew a licence or a permit issued to that person.
An appeal of a decision referred to in subsection (1) must be made by giving the chair of the appeal committee written notice of the appeal no later than 30 days after the person receives notice of the decision.
The Resource Tourism Appeal Committee is established, consisting of not more than seven persons appointed by the minister.
The minister shall designate one of the members of the appeal committee as its chair.
Certain persons to be appointed
The minister shall appoint to the appeal committee at least one person from each of the following categories:
(a) persons involved in a group or association that represents the interests of outfitters;
(b) persons involved in a group or association that represents the interests of hunters or fishers;
(c) members of the public who have experience in the outfitting industry or who hunt, fish or participate in ecotourism.
The purpose of the appeal committee is to provide an opportunity for the parties to an appeal to present evidence and make representations with respect to a decision under appeal and determine appeals.
The appeal committee may establish its own rules of practice and procedure.
The appeal committee may conduct a hearing orally, including by telephone, or in writing, or partly orally and partly in writing.
The appeal committee may receive evidence in any manner that it considers appropriate, and is not bound by the rules of law respecting evidence applicable to judicial proceedings.
The appeal committee shall arrange a date for the hearing of an appeal and shall provide the appellant and the administrator with at least 14 days' notice of the date, time and place of the appeal hearing.
The administrator is a party to every appeal under this Act and may appear or be represented and present evidence and make representations at any appeal hearing.
After a hearing, the appeal committee may
(a) quash, vary or confirm the decision under appeal; or
(b) substitute any decision that could have been made in the first instance.
The appeal committee shall promptly notify the appellant of its decision in writing.
The appeal committee's decision is final. This subsection does not preclude an application to the Court of Queen's Bench for judicial review.
Continued operation pending appeal
Subject to subsection (2), an appellant may continue to operate in accordance with the terms and conditions of his or her licence or permit as if the decision under appeal had not been made, until a decision on the appeal has been made.
Exception to continued operation
The administrator may refuse to allow an appellant to continue to operate under subsection (1) if the administrator is satisfied that continued operation would pose a risk to the health or safety of others or to the state of the natural resources of the area.
The minister may appoint any person as an officer for the purpose of enforcing this Act.
An officer exercising a power under this Act shall produce identification when requested to do so.
Entry and inspection of facilities
An officer may, at any reasonable time, and where reasonably required to determine compliance with this Act,
(a) without a warrant, enter and inspect any accommodation facility or related facility in respect of which a permit has been issued; and
(b) inspect any documents, records or data required to be kept under the regulations, and take extracts from them or copy them at the facility or, after issuing a receipt, remove them for the purpose of making copies or extracts.
A person in charge of a facility referred to in subsection (1) and any person found at the facility shall
(a) give an officer all reasonable assistance to enable the officer to carry out his or her duties; and
(b) provide the officer with any information or documents the officer may reasonably request for the purpose of enforcing this Act.
An officer who witnesses the commission of an offence under this Act may without process arrest the person committing the offence and bring him or her before a court of competent jurisdiction to be dealt with according to law.
No person shall obstruct an officer carrying out his or her duties under this Act or make a false or misleading statement to an officer.
In discharging duties under this Act, an officer and any person assisting an officer may enter and pass through or over private land without being liable for trespass.
For the purposes of enforcing this Act, an officer may signal or request a vehicle to stop, and the person having control of the vehicle shall bring the vehicle to a stop and shall not proceed until permitted to do so by the officer.
Seizure in execution of duties
An officer acting in the course or scope of duty who witnesses an offence being committed under this Act may seize any item which is being used to commit the offence or which is evidence of the offence, and shall bring it before a justice, or report on it to a justice, to be dealt with according to law.
Officer's power of search and seizure
An officer who believes on reasonable grounds that
(a) an offence under this Act has occurred or is occurring; and
(b) there exists in a place or vehicle an item that affords evidence of the offence;
may, with a warrant issued under subsection (3), enter and search the place or vehicle and seize the item.
A justice who is satisfied by information under oath that there are reasonable grounds to believe that in a place or vehicle there exists an item that will afford evidence of an offence may at any time, and if necessary upon application without notice, issue a warrant authorizing an officer and any other persons named in the warrant to enter and search the place or vehicle for the item, and to seize it and bring it before a justice, or report on it to a justice, to be dealt with according to law.
Notwithstanding subsection (3), an officer may exercise the power of search and seizure without a warrant if the conditions for obtaining a warrant exist but it is not practicable in the circumstances to obtain one, in which case the item seized shall be brought before, or reported to, a justice, who shall deal with it according to law.
An officer who seizes a perishable item may dispose of it by sale or donation or destroy it if it is not practical to sell or dispose of the item. Any proceeds realized from its disposition, with interest to be paid at a rate fixed from time to time by the Lieutenant Governor in Council, shall be held pending the outcome of the proceedings or until a decision is made not to commence proceedings.
When proceedings involving a seized item have been finally resolved,
(a) if the accused has been convicted, the court may order the item, or the proceeds of the disposition under section 25, forfeited to the Crown and disposed of as directed by the minister; and
(b) if the accused is not convicted or the court does not order forfeiture, the item, or the proceeds of its disposition under section 25, shall be turned over or paid to the lawful owner of the seized item.
If charges are not laid under this Act, the seized item or the proceeds of its disposition under section 25 shall be turned over or paid to the lawful owner of the seized item, unless the item has been donated or destroyed.
If the lawful owner of a seized item is unknown or cannot be located after reasonable effort, the item becomes the property of the Crown and may be disposed of as the minister directs,
(a) if charges are laid under this Act, after proceedings involving the seized item have been finally resolved; and
(b) if no charges are laid, six months after the seizure.
For the purposes of this Act,
(a) a person has a thing in their possession when he or she has it in their personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him or her, for the use or benefit of himself or herself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his or her custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
In any prosecution arising out of the possession of a thing, the burden of proof is on the accused to prove that he or she did not have possession of the thing within the meaning of subsection (1).
In a prosecution under this Act in which proof is required respecting
(a) the issuance, renewal, cancellation, suspension or transfer of a licence or permit;
(b) whether a person is the holder of or is entitled to hold a licence or permit;
(c) the appointment of an officer; or
(d) the sending of a document or notice;
a certificate signed by the minister is admissible, in the absence of evidence to the contrary, as proof of the facts stated in the certificate and the authority of the minister, without proof of the appointment or signature of the minister.
A person who contravenes any provision of this Act is guilty of an offence and is liable, on summary conviction,
(a) in the case of an individual, to a fine of not more than $10,000. or imprisonment for a term of not more than six months, or both; and
(b) in the case of a corporation, to a fine of not more than $20,000.
Liability of directors and officers
If a corporation commits an offence under this Act, a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence and is liable on summary conviction to the penalties set out in clause (1)(a), whether or not the corporation has been prosecuted or convicted.
If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any monetary benefits or that monetary benefits accrued to the person, the court may order the person to pay a fine of not more than the court's estimation of the amount of those monetary benefits. A fine under this subsection is in addition to and not in place of a fine under subsection (1).
When a contravention of this Act continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.
A prosecution under this Act may be commenced not later than two years after the day the alleged offence was committed.
The minister may make regulations
(a) establishing the qualifications and eligibility requirements of an applicant for a licence or permit and any partner, shareholder, officer or director of a licence or permit holder;
(b) respecting the issuance, renewal, transfer and expiry of a licence or permit;
(c) respecting the cancellation or suspension of a licence or permit;
(d) prescribing the fees payable for a licence or permit;
(e) prescribing the fees payable for an application made under the Act;
(f) respecting terms and conditions that attach to a licence or permit and the modification or imposition of any terms or conditions on a licence or permit that has already been issued;
(g) respecting the information, plans and documentation required in an application for a licence or permit or the renewal or transfer of a licence or permit;
(h) respecting the construction, location and maintenance of accommodation facilities and related facilities;
(i) respecting the standard of services, supplies and equipment provided by outfitters;
(j) respecting the training and qualifications of persons employed or retained by a licence or permit holder;
(k) prescribing records that a licence or permit holder must keep and returns and reports that must be made to the administrator;
(l) governing advertising by an outfitter;
(m) respecting the amount and type of insurance to be carried by a licence or permit holder;
(n) designating any activity as ecotourism;
(o) respecting the classification and inspection of facilities, services and equipment offered by a licence or permit holder;
(p) regulating or prohibiting areas in which outfitting services may be provided and the number and type of outfitters that may operate in an area;
(q) regulating or prohibiting the types and number of outfitting services that are offered in an area;
(r) prescribing the circumstances under which a change in the ownership or control of a licence or permit holder must be reported to the administrator under section 12;
(s) defining any word used but not defined in this Act;
(t) respecting any other matter necessary or advisable to carry out the intent and purpose of this Act.
The minister may delegate to any person any power conferred or duty imposed on the minister by this Act, other than the power to make regulations.
No action or proceeding for damages may be brought against the minister, the administrator, members of the appeal committee or any person acting under the authority of, or engaged in the administration of this Act because of anything done or omitted in good faith
(a) in the performance or intended performance of a duty under this Act; or
(b) in the exercise or intended exercise of a power under this Act.
A licence or permit issued under The Tourism and Recreation Act is deemed to be a licence or permit under this Act, and a person who holds a licence or permit issued under that Act is not required to obtain a licence or permit under this Act until his or her licence or permit under that Act expires.
Consequential amendments, C.C.S.M. c. T100
The Tourism and Recreation Act is amended by this section.
Section 1 is replaced with the following:
In this Act, "minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act.
Section 4 is amended
(a) in clause (b) , by striking out everything after "tourist attractions" and substituting "and tourist facilities;"; and
Sections 5, 6, 7, 8 and 9 are repealed.
Consequential amendments, C.C.S.M. c. L160
Subsection 74(1) of The Liquor Control Act is amended by striking out "The Tourism and Recreation Act" and substituting "The Resource Tourism Operators Act".
This Act may be referred to as chapter R119.5 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day fixed by proclamation.