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The Water Resources Administration Amendment Act

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S.M. 2021, c. 29

Bill 28, 3rd Session, 42nd Legislature

The Water Resources Administration Amendment Act

Explanatory Note

This note was written as a reader's aid to the Bill and is not part of the law.

This Bill amends The Water Resources Administration Act to provide the government with increased powers to manage water control works and protect provincial water infrastructure.

Provincial water infrastructure consists of water control works under the government's control as well as any lakes, rivers or other water channels and surrounding embankments that are designated as provincial waterways.

Management of water control works

The following amendments are made to facilitate the management of water control works.

Government contracting rules for the construction, operation and repair of water control works are modernized and made more flexible.

Currently, only local authorities may enter into an agreement with the government for the construction or operation of a water control work, including a cost-sharing arrangement. Other parties will now be able to enter into such an agreement.

The Land Acquisition Act no longer applies to the government's acquisition of property for water control works.

The provisions for disposing of surplus land by vesting order are simplified.

Protection of provincial water infrastructure

The following amendments are made to protect provincial water infrastructure.

It is prohibited to deliberately or negligently damage provincial water infrastructure or to impair its function.

Permits are now required for activities likely to interfere with provincial water infrastructure, such as construction or the removal of fill.

The government may issue a repair or removal order to a person for anything done without a permit. Failure to comply with the order may result in the government performing the work at the person's expense.

Public access to provincial water infrastructure can be prohibited or restricted by regulation. Temporary access restrictions of up to 90 days may be imposed by ministerial order, for example to account for increased risk of drowning during spring flooding.

Other amendments

Maximum fines under the Act are increased.

Certain structures, such as fences, may be exempted by regulation from the requirement for a designated reservoir area permit or a designated flood area permit.

(Assented to May 20, 2021)

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

(a) by replacing the definition "local authority" with the following:

"local authority" means

(a) a council, board or other governing body of a municipality, school district or school division, or of a watershed district established or continued under The Watershed Districts Act,

(b) the resident administrator of a local government district incorporated under The Local Government Districts Act, and

(c) the council of a community under The Northern Affairs Act; (« autorité locale »)

(b) by adding the following definitions:

"person" includes a local authority, a partnership and any other organization or entity; (« personne »)

"provincial water infrastructure" means

(a) a water control work under the jurisdiction and control of the minister, and

(b) a provincial waterway,

but does not include a water control work required to be licensed or registered under The Water Rights Act; (« infrastructure hydraulique provinciale »)

3

The following is added after section 1:

Purposes

1.1

The purposes of this Act are

(a) to govern the construction and operation of water control works by, or on behalf of, the government;

(b) to establish a framework for the payment of compensation for damage caused by artificial flooding;

(c) to provide for the designation of provincial waterways;

(d) to protect provincial water infrastructure;

(e) to control activities in designated reservoir areas and designated flood areas; and

(f) to provide for the evacuation of dyked areas in the event of flood danger.

4

The centred heading "ADMINISTRATION" is added before section 2.

5

Subsection 2(3) is amended, in the part before clause (a), by adding "or the management and administration of provincial waterways" after "water control works".

6

Section 2.1 is repealed.

7

The centred heading "WATER CONTROL WORKS" is added before section 5.

8(1)

Subsection 6(1) is replaced with the following:

Agreements for water control works

6(1)

The minister, on behalf of the government, may enter into an agreement with any person respecting

(a) the construction, operation, maintenance or repair of a water control work by the government or the person, or jointly by them; and

(b) the payment of any resulting costs, including how those costs are to be shared between the parties.

The agreement may be entered into on any terms and conditions that the minister considers appropriate.

8(2)

Clause 6(2)(b) is amended by adding "all or" before "a part of".

9

Section 7 is repealed.

10

The centred heading "ACQUISITION AND DISPOSITION OF PROPERTY" is added before section 9.

11

Subsection 9(1) is amended

(a) by striking out "Subject to The Land Acquisition Act, the" and substituting "The"; and

(b) in the English version, by striking out "he" and substituting "the minister".

12(1)

Subsection 11(4) is amended by striking out "sold, leased, conveyed to, or vested in, any other person or otherwise disposed of as may be" and substituting "conveyed or vested as".

12(2)

Subsection 11(5) is amended by striking out everything after "from the Crown".

12(3)

Subsection 11(6) is replaced with the following:

Effect of vesting in owner of adjoining land

11(6)

If land is vested in the owner of adjoining land as a result of an order in council,

(a) the land is vested subject to any mortgage, encumbrance, lien or charge to which the adjoining land is subject; and

(b) any title under The Real Property Act must be issued subject to any mortgage, encumbrance, lien or charge to which the adjoining land is subject.

12(4)

Subsection 11(7) is repealed.

13

The centred heading "COMPENSATION FOR ARTIFICIAL FLOOD DAMAGE" is added before section 12.1.

14

The centred heading "PROVINCIAL WATERWAYS" is added before section 13.

15

Subsection 14(1) is amended

(a) by striking out ", but subject to subsection (5)"; and

(b) by striking out "subject to subsection (5), upon" and substituting "upon".

16

Subsections 14(4) and (5) and section 15 are repealed.

17

The following is added as sections 15.1 to 15.6:

PROTECTION OF PROVINCIAL WATER INFRASTRUCTURE

Prohibited activities

15.1

A person must not deliberately or negligently

(a) damage, injure, break or destroy provincial water infrastructure; or

(b) impair the function of provincial water infrastructure.

Activities requiring permit

15.2(1)

Unless the minister has issued a permit for the activity, a person must not do any of the following:

(a) construct, or otherwise place or establish, any works or structures on, over, under, through or across provincial water infrastructure;

(b) place material on, or remove material from, provincial water infrastructure;

(c) perform any activity on or near provincial water infrastructure, or use the provincial water infrastructure in a manner, that

(i) affects or has the potential to affect its structural integrity,

(ii) degrades or has the potential to degrade its vegetation cover or any other covering material intended to limit erosion, or

(iii) has the potential to impair its function.

Exemption

15.2(2)

Subsection (1) does not apply to an activity that is exempted under the regulations from requiring a permit under this section.

Application for permit

15.3(1)

An application for a permit must be made to the minister in the form required by the minister.

Information to be included

15.3(2)

The application must be accompanied by any plans, drawings, designs and specifications that the minister requires.

Permit fee

15.3(3)

Before a permit under section 15.2 is issued by the minister, the applicant must pay the permit fee fixed in the regulations.

Issuance of permit

15.3(4)

The minister may issue a permit for any of the activities set out in subsection 15.2(1) and make the permit subject to any terms and conditions that the minister considers appropriate.

Suspension or cancellation of permit

15.4

The minister may suspend or cancel a permit if

(a) a term or condition of the permit has not been complied with; or

(b) the performance of any activity, or the presence or operation of any thing, authorized by the permit

(i) creates a risk to persons or property, or

(ii) damages or interferes with the safe operation of provincial water infrastructure, or is likely to do so.

Liability

15.5

Despite any other provision of this Act or any other Act, a person who performs an activity set out in section 15.1 or 15.2 is liable for negligence in respect of the activity in the same manner as if the provincial water infrastructure were under the jurisdiction and control of that person.

Access restrictions to provincial water infrastructure

15.6(1)

The Lieutenant Governor in Council may, by regulation, prohibit or restrict public access to specific provincial water infrastructure.

Temporary access restriction by ministerial order

15.6(2)

The minister may, by written order, prohibit or restrict public access to any provincial water infrastructure identified in the order for a period of not more than 90 days.

Order must state effective period

15.6(3)

An order made under subsection (2) must state the period during which the prohibition or restriction is in effect.

Publication of order

15.6(4)

Without delay after an order is made under subsection (2), the order must be published by posting it on the website of the minister's department.

Publication constitutes notice of order

15.6(5)

Publication of an order in the manner set out in subsection (4) is notice of the order to all persons.

Statutes and Regulations Act does not apply

15.6(6)

The Statutes and Regulations Act does not apply to an order of the minister made under subsection (2).

Precedence of order

15.6(7)

If there is an inconsistency between a regulation made under subsection (1) and an order made under subsection (2), the order prevails to the extent of the inconsistency.

Compliance with access restrictions

15.6(8)

A person must not access provincial water infrastructure in contravention of a regulation made under subsection (1) or an order made under subsection (2).

18

The centred heading "DESIGNATED RESERVOIR AREAS" is added before section 16.

19(1)

Subsection 16(1) is amended

(a) in clause (a), by striking out "other than a fence"; and

(b) by replacing the part after clause (b) with "except under authority of a permit issued under subsection (4).".

19(2)

The following is added after subsection 16(1):

Exemption

16(1.1)

Subsection (1) does not apply to a type of building, structure or erection exempted by regulation from the application of this section.

19(3)

Subsection 16(7) is repealed.

20

The centred heading "DESIGNATED FLOOD AREAS" is added before section 17.

21(1)

Clauses 17(1)(a) and (b) are amended by striking out "other than a fence".

21(2)

The following is added after subsection 17(1):

Exemption

17(1.1)

Subsection (1) does not apply to a type of building, structure or erection exempted by regulation from the application of this section.

21(3)

Subsection 17(13) is repealed.

22

The following is added after section 17:

ENFORCEMENT

Minister may designate enforcement officers

17.1(1)

The minister may designate a person or class of persons as enforcement officers for the purpose of enforcing any provision of this Act or the regulations.

Inspections

17.1(2)

An enforcement officer may enter upon any land for the purpose of conducting an inspection to determine compliance with this Act and the regulations, or with the terms and conditions of a permit issued or agreement entered into under this Act.

Identification

17.1(3)

An enforcement officer entering upon land for the purpose of conducting an inspection must provide identification if requested to do so.

No obstruction of enforcement officers

17.2

A person must not obstruct or hinder, or make a false or misleading statement to, an enforcement officer who is exercising a power or performing a duty under this Act or the regulations.

Orders to repair or remove

17.3(1)

The minister may issue a written order to a person requiring the person to repair any damage caused, or to remove any thing constructed, placed or established,

(a) in contravention of section 15.1, 15.2, 16 or 17, or of a term or condition of a permit issued under this Act;

(b) under authority of a permit suspended or cancelled by the minister under section 15.4; or

(c) under authority of a permit cancelled under section 16 or 17, if the cancellation has not been appealed to The Municipal Board or if The Municipal Board has upheld the cancellation on appeal.

Service of order

17.3(2)

An order made under this section must be given to the person named in the order

(a) personally; or

(b) by sending it by registered mail to the person's last known address, in which case the order is deemed to be served seven days after the date of mailing.

Minister's power to carry out work

17.3(3)

If, after having been given the order in accordance with subsection (2), the person fails to comply with the order, the minister may do, or cause to be done, any work required by the order.

Right of entry

17.3(4)

For the purpose of undertaking work in accordance with subsection (3), the minister or any person authorized by the minister may enter upon any land.

Cost of removal

17.3(5)

The cost of any work done by or on behalf of the minister is a debt due to the government by the person named in the order.

Joint and several liability

17.3(6)

If more than one person is named in an order under this section, they are jointly and severally liable for any debt under subsection (5).

Certificate of debt

17.3(7)

The minister may certify a debt referred to in subsection (5) or any part of the debt that has not been paid. The certificate may be registered in court and, once registered, may be enforced as if it were a judgment of the court.

23

The centred heading "DYKED AREAS" is added before section 18.

24

Section 19 is replaced with the following:

CONTRACTS

Power of minister re contracts

19

The minister may, on behalf of the government, enter into any contract the minister considers advisable for the administration of this Act. But no contract is binding on the minister or the government unless it is signed by the minister.

Duty to invite tenders

19.1(1)

The minister must invite tenders for the construction or repair of any water control works unless

(a) the work is performed by employees of the government;

(b) in the opinion of the minister, the work

(i) is too urgent to be tendered, or

(ii) can be performed more efficiently through a different arrangement; or

(c) a committee of the Executive Council has approved the work to be completed without an invitation to tender.

Minister may establish eligibility requirements

19.1(2)

For any invitation to tender issued under subsection (1), the minister may establish eligibility requirements that a bidder must meet to be eligible to submit a tender in response to the invitation.

Forgoing the lowest compliant bid

19.1(3)

The minister may forgo the lowest compliant bid received from an eligible bidder in response to any invitation to tender issued under subsection (1)

(a) with the approval of a committee of the Executive Council if the value of the contract is equal to or more than the amount prescribed in the regulations; or

(b) without approval if the value of the contract is less than the amount prescribed in the regulations.

Preconditions for commencing work under contract

19.2(1)

Unless authorized by the minister, no money may be paid to a contractor and no work may commence under a contract until

(a) the contract has been signed by all parties; and

(b) the contractor has provided any security required under subsection (2).

Security

19.2(2)

The minister may require a contractor with whom the minister enters into a contract under this Act to provide security, in a form and amount the minister considers appropriate, for the performance of the contract and for the payment of labour and materials to be provided under the contract.

Interest on holdback

19.2(3)

If a contract entered into under this Act provides for a holdback of all or a portion of the contract price, the minister must pay interest on the holdback in accordance with the regulations.

GENERAL MATTERS

No false or misleading statements

19.3

A person must not make a false or misleading statement in any application for a permit under this Act or the regulations.

Transfer of permit

19.4

A permit issued under this Act may be transferred only with the prior written consent of the minister.

25

Section 20 is amended

(a) in the English version, in the part before clause (a), by striking out "him" and substituting "the minister"; and

(b) by striking out "or" at the end of clause (a), adding "or" at the end of clause (b) and adding the following after clause (b):

(c) entry upon which is necessary for the maintenance or repair of a provincial waterway.

26

Sections 22 and 25 are repealed.

27

The following is added as section 25.1:

OFFENCES AND PENALTIES

Offences and penalties

25.1(1)

A person who contravenes a provision of this Act or the regulations, or who fails to comply with a term or condition of a permit issued under this Act, is guilty of an offence and is liable on conviction

(a) in the case of an individual, to a fine of not more than $50,000 or imprisonment for a term of not more than three months, or both; and

(b) in the case of a corporation, to a fine of not more than $500,000.

Liability of directors and officers

25.1(2)

If a corporation commits an offence under subsection (1), 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 conviction to the penalties set out in clause (1)(a), whether or not the corporation has been prosecuted or convicted.

Continuing offence

25.1(3)

When a contravention continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.

Time limit for prosecution

25.1(4)

A prosecution for an offence under this Act must not be commenced more than two years after the day on which evidence sufficient to justify a prosecution for the offence came to the knowledge of an enforcement officer. The certificate of the enforcement officer as to the day on which the evidence came to their knowledge is evidence of that date.

28

Subsection 26(1) is amended

(a) by replacing the part before clause (a) with "The Lieutenant Governor in Council may make regulations";

(b) by repealing clauses (b) and (d);

(c) by replacing clause (g) with the following:

(g) respecting the issuance of permits under sections 15.2, 16 and 17, including

(i) fixing permit fees, and

(ii) exempting any thing from the requirement for a permit under any of those sections;

(d) by adding the following after clause (j):

(k) prescribing an amount for the purpose of subsection 19.1(3);

(l) prescribing the rate of interest or the method of determining a rate of interest under subsection 19.2(3), and prescribing the period of time for which interest is payable.

29

Sections 27 to 29 are repealed.

30

The following is added as section 30:

C.C.S.M. REFERENCE

C.C.S.M. reference

30

This Act may be referred to as chapter W70 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

31

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