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S.M. 2021, c. 29
Bill 28, 3rd Session, 42nd Legislature
The Water Resources Administration Amendment Act
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.
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:
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,
The following is added after section 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
Subsection 6(1) is replaced with the following:
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.
Subsection 9(1) is amended
(a) by striking out "Subject to The Land Acquisition Act, the" and substituting "The"; and
Subsection 11(6) is replaced with the following:
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
Subsection 14(1) is amended
(a) by striking out ", but subject to subsection (5)"; and
The following is added as sections 15.1 to 15.6:
PROTECTION OF PROVINCIAL
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.
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.
Subsection (1) does not apply to an activity that is exempted under the regulations from requiring a permit under this section.
An application for a permit must be made to the minister in the form required by the minister.
The application must be accompanied by any plans, drawings, designs and specifications that the minister requires.
Before a permit under section 15.2 is issued by the minister, the applicant must pay the permit fee fixed in the regulations.
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.
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.
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.
The Lieutenant Governor in Council may, by regulation, prohibit or restrict public access to specific provincial water infrastructure.
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.
An order made under subsection (2) must state the period during which the prohibition or restriction is in effect.
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 of an order in the manner set out in subsection (4) is notice of the order to all persons.
The Statutes and Regulations Act does not apply to an order of the minister made under subsection (2).
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.
Subsection 16(1) is amended
(a) in clause (a), by striking out "other than a fence"; and
The following is added after subsection 16(1):
The following is added after subsection 17(1):
The following is added after section 17:
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.
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.
An enforcement officer entering upon land for the purpose of conducting an inspection must provide identification if requested to do so.
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.
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.
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.
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.
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.
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.
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).
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.
Section 19 is replaced with the following:
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.
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.
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.
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.
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).
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.
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.
A person must not make a false or misleading statement in any application for a permit under this Act or the regulations.
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):
The following is added as section 25.1:
OFFENCES AND PENALTIES
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.
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.
When a contravention continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.
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.
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);
The following is added as section 30:
This Act may be referred to as chapter W70 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.