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S.M. 2004, c. 18
Bill 23, 2nd Session, 38th Legislature
The Red River Floodway Act
(Assented to June 10, 2004)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The following definitions apply in this Act.
"artificial flooding", in relation to a given event, means flooding
(a) caused by floodway operation during spring flooding; and
(b) in which the Red River exceeds its natural 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 »)
"director" means the person appointed under The Civil Service Act as the director for the purposes of this Act. (« directeur »)
"economic loss" means
(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 property that conforms to the criteria set out in subsection 2(2). (« biens admissibles »)
"extreme spring flood" means spring flooding of so great a magnitude that the floodway, operating in accordance with the rules of operation, cannot maintain the natural level of the Red River upstream of the floodway channel. (« crue printanière extrême »)
"floodproofing criteria" means floodproofing criteria as defined in the Designated Flood Area Regulation. (« critères de prévention des inondations »)
"floodway" means the Red River Floodway, consisting of land and structures set out in plans of survey listed in the regulations, including, but not limited to, the floodway control structure, floodway channel, floodway outlet structure and west dyke. (« canal de dérivation »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"natural level" means the scientifically demonstrable water level that would be expected in the Red River at a given time during spring flooding in the absence of the floodway, the Assiniboine River Diversion, the Assiniboine River dykes, the Shellmouth Dam, the primary dykes in the City of Winnipeg, and urban development in the area protected by the floodway since its design was finalized. (« niveau naturel »)
(a) an individual;
(b) a corporation or other body corporate;
(c) a partnership, limited partnership or limited liability partnership;
(d) an unincorporated association of persons; or
(e) a trustee or legal representative. (« personne »)
"rules of operation" means the rules of operation of the floodway control structure approved by the minister under The Water Resources Administration Act. (« règles de fonctionnement »)
"spring flooding" means the annual seasonal increase in the water level of the Red River resulting from runoff from melted snow or runoff from a combination of melted snow and rainwater. (« crue printanière »)
COMPENSATION FOR ARTIFICIAL FLOOD DAMAGE AND ECONOMIC LOSS
A person may claim compensation under this Part 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.
A person may claim compensation under this Part 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.
A person may claim compensation under this Part 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.
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 of The Water Resources Administration Act 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.
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.
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.
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 any compensation to be awarded under this Act in respect of the damaged property or loss.
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).
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.
A compensation award is not conditional on the claimant repairing or replacing the damaged property.
Despite subsection (1), 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.
Compensation under this Part shall 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 crop insurance program.
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 3(2) may appeal to the Disaster Assistance Appeal Board appointed under The Emergency Measures Act.
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.
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.
When a person is awarded compensation because of a determination under subsection 3(2) or an appeal decision under section 5, the government must provide the person with compensation in the amount awarded, subject to any applicable provisions of the regulations.
A person may do either of the following, but not both:
(a) claim compensation under this Part 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.
EXTREME SPRING FLOODS
WATER STORAGE ON LAND
When an extreme spring flood occurs or the director believes, based on information that he or she considers reliable, that one is about to occur, the government may, to the extent the director considers necessary to limit risks to public safety or health and damage to property or the environment,
(a) flood any real property and store water on the property; and
(b) cause any real and personal property to be negatively affected by flooding and water storage.
Subsection (1) applies whether or not the minister makes an extreme spring flood declaration under section 9.
SUSPENSION OF CERTAIN COURT PROCEEDINGS AFTER AN EXTREME SPRING FLOOD DECLARATION
On the advice of the director that an extreme spring flood is occurring or about to occur, the minister may make an extreme spring flood declaration. The declaration takes effect when it is made.
The minister must cause the declaration to be published without delay in one issue of The Manitoba Gazette.
An extreme spring flood declaration remains in effect until the minister declares it is ended and that declaration is published in one issue of The Manitoba Gazette.
The Regulations Act does not apply to a declaration under this section.
No person may commence or maintain court proceedings to set aside or appeal a declaration made under this section or to have a declaration judicially reviewed.
While an extreme spring flood declaration is in effect, no person may commence or maintain court proceedings to prevent or restrain the government, or any person acting under the authority of the government or engaged in administering this Act, from
(a) doing anything that section 8 authorizes the government to do; or
(b) operating the floodway
(i) in accordance with the rules of operation, or
(ii) in a manner authorized by an Act of the Legislature or by a licence issued under an Act of the Legislature.
ANALYSIS OF FLOOD PROTECTION NEEDS
When an extreme spring flood occurs or the director believes, based on information that he or she considers reliable, that one is about to occur, the government must cause an analysis to be done of flood protection needs in the affected area with the aim of identifying where flood protection resources are needed and prioritizing the needs.
On or before June 30 of any year in which the government operates the floodway during spring flooding to regulate the river level, the director must provide the minister with a report about the operation containing the information the minister requires.
As soon as reasonably practicable after receiving the report, 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.
No action may be brought against the government or any person acting under the authority of or engaged in administering this Act for anything done or not done, or for any neglect,
(a) in the performance or intended performance of a duty under this Act or the regulations under this Act; or
(b) in the exercise or intended exercise of a power under this Act or the regulations under this Act;
unless the government or person was acting in bad faith.
The Lieutenant Governor in Council may make regulations
(a) prescribing the plans of survey that relate to the land and structures that make up the floodway;
(b) respecting the eligibility of persons to claim compensation under section 2;
(c) prescribing a time limit after which a person may not claim compensation and prescribing other time limits respecting property damage or economic loss;
(d) respecting eligible property and economic loss;
(e) 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) respecting applications for compensation, respecting the determination and assessment of compensation claims and respecting the evaluation of claimants' entitlement to assistance or compensation under other programs;
(g) respecting compensation, and compensation claims generally;
(h) respecting appeals under section 5, including prescribing an appeal fee and providing for circumstances in which the fee may be waived or refunded in whole or part;
(i) respecting floodway operations reports;
(j) defining any word or phrase used but not defined in this Act;
(k) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.
CONSEQUENTIAL AMENDMENTS, C.C.S.M. REFERENCE AND COMING INTO FORCE
The following is added after subsection 17(1):
Without limiting the generality of subsection (1), the Lieutenant Governor in Council may at any time appoint additional members to the Disaster Assistance Appeal Board to enable it to carry out its duties under this Act and The Red River Floodway Act.
The following is added after subsection 17(2):
The following is added after subsection 17(5):
The Disaster Assistance Appeal Board may carry out its duties under this Act and The Red River Floodway Act in panels of not fewer than three members.
The chairperson is to determine which members of the Disaster Assistance Appeal Board are to constitute the panel to hear an appeal under this Act or decide an appeal under The Red River Floodway Act.
A decision of a panel about an appeal under this Act or The Red River Floodway Act is the decision of the Disaster Assistance Appeal Board.
This Act may be referred to as chapter R32 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.