as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. W60
The Water Power Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"Crown" means Her Majesty the Queen in right of the Province of Manitoba; ("Couronne")
"Crown lands" includes all lands and real property of whatsoever nature or kind and all the right, interest, or estate, therein vested in, or that may be acquired by, the Crown before or after the coming into force of this Act, and any other lands or any interest therein that have been or may be placed under the control and management of the minister charged with the administration of The Crown Lands Act; ("terres domaniales")
"director" means the director of The Water Resources Branch; ("directeur" )
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; ("ministre")
"provincial water powers" means any water powers on Crown lands, or any other water powers that are the property of the Crown and which have been or may be placed under the control and management of the minister; ("source d'énergie hydraulique de la province")
"stream" or "water" includes any river, brook, lake, pond, creek, or other flowing or standing water; ("cours d'eau" ou "eau")
"undertaking" means the undertaking required or proposed to be established or carried on, in pursuance of this Act or of the regulations, by the Crown or by any applicant, licensee, or person, in the development of any provincial water power or in the transmission, distribution, or utilization, of the force or energy produced from the water power, and includes, in so far as authorized or required in any case,
(a) the storage, pondage, penning back, regulation, augmentation, carriage, diversion, and use, of water or of the flow thereof,
(b) the generation of energy at any plant that is used as an auxiliary to the water power plant,
(c) the surveying, the laying out, the constructing, the maintaining, and the operating, of works, including dams, flumes, penstocks, power stations, transmission lines, terminal stations, and sub-stations,
(d) the surveying of any Crown lands or other lands, the carrying on of investigations, and the collection of data,
(e) the acquisition and use of lands and properties or any interest therein,
(f) the administration and management of the required lands, works, and properties; and the business connected therewith, and
(g) matters incidental to any of the foregoing; ("entreprise")
"water power" includes any force or energy of whatever form or nature contained in, or capable of being produced or generated from, any flowing or falling water in such quantity as to make it of commercial value. ("énergie hydraulique" ou "source d'énergie hydraulique")
WATER RESOURCES BRANCH
The minister shall manage and control provincial water powers and administer this Act through The Water Resources Branch.
The minister shall annually lay before the Legislative Assembly, within 15 days after the first day of meeting thereof, a report of the proceedings, transactions, and affairs, of The Water Resources Branch during the year next preceding.
APPLICATION OF ACT
This Act applies
(a) to all provincial water powers;
(b) to all Crown lands required in connection with the development or working of such water powers or for purposes incidental thereto;
(c) to all lands and properties that may be acquired or authorized to be acquired under the terms and for the purposes of this Act, or that may have been acquired before July 15, 1930, and are still used or may be required in connection with provincial water powers;
(d) to the power and energy produced or producible from the waters on or within those lands, whether the power or energy derived therefrom or any portion thereof is distributed upon or utilized on Crown lands or not;
(e) to all undertakings established or carried on in respect of any provincial water powers; and
(f) to all matters incidental thereto.
The property in, and the right to the use of, all provincial water powers are hereby vested in, and shall remain in, the Crown, saving, however, any rights of property in, or to the use of, those powers that before July 15, 1930, were granted by the Crown in right of Canada.
(a) upon or within which there is water power;
(b) required for the protection of any water power; or
(c) required for the purposes of any undertaking; and the water powers and waters thereon, are not open to sale; and, except as hereinafter otherwise provided, no interest therein shall be leased or otherwise granted or conveyed by the Crown; and any grant or conveyance made after July 15, 1930, of any such lands or any interest therein, except in pursuance of this Act and the regulations, does not vest in the grantee any exclusive or other property or interest with respect to the lands.
No interest in any water power capable of developing more than 25,000 continuous horse power, or in any land required for such an undertaking, or necessary for creating, protecting, or developing, such a water power, shall be leased or otherwise granted or conveyed by the Crown under this Act the regulations unless prior approval or subsequent ratification thereof has been given by the Legislature.
No permit, licence, lease, or other concession, shall be made for or of any lands within a national park or forest reserve until the Director General of Environment Canada, or the member of the Executive Council charged with the administration of The Forest Act, as the case may be, has reported upon the effect of such a permit, licence, lease, or other concession, upon the park or forest reserve concerned; and the minister has decided whether it is necessary to insert any provisions in the permit, licence, lease, or other concession, to protect the use and enjoyment of the national park or forest reserve.
Where small areas only of a parcel or subdivision of any Crown lands are required to be submerged along the bank of a stream in connection with an undertaking, if it has not been found practicable or expedient to make surveys for the purpose of setting out the exact limits of the area to be flooded, the minister may dispose of the parcel or subdivision in accordance with the provisions of any other Act or regulation applicable to the disposal of such lands, reserving, however, the right at any time to raise the water surface to such elevation as may be required in connection with the undertaking.
Notwithstanding the provisions of any document evidencing any permit, lease, licence or other concession heretofore or hereafter granted by the Crown by this Act or the regulations for any interest in water power or any interest in or rights over land required or necessary for the creation, protection or development for water power, and notwithstanding any rental, royalty, fees, dues or charges fixed in or by the document, the rental, royalty, fees, dues and charges to be paid for the diversion, use or storage of water or for the use or occupancy of lands, or for any other privilege granted under the permit, lease, licence or concession, shall be the amount thereof as fixed, from time to time, under the regulations.
Where the minister determines that Crown lands
(a) upon which there is water power; or
(b) that were required for the protection of any water power; or
(c) that were required for the purposes of any undertaking; or
(d) that were, by regulation made under clause 14(l)(e), withdrawn from disposal under any other Act of the Legislature;
are no longer required for the development or protection of water power or for the purposes of any undertaking or for the pusposes of this Act or he is satisfied that adequate measures have been taken to protect any existing or future undertaking for which the Crown lands are or may be required, he may, by written order, direct that the lands be dealt with under The Crown Lands Act and thereafter the lands are Crown lands within the meaning of that Act and are subject to control and management, and may be disposed of, in accordance with that Act.
Where any land or any interest therein is required by the Crown for any undertaking or is necessary for creating, protecting, or developing, any water power, the Lieutenant Governor in Council may direct the minister on behalf of the Crown to acquire by expropriation the title to that land or the interest therein as may be required; and thereupon the minister may expropriate the land or the interest therein.
Any person who, in pursuance of this Act or of the regulations, is authorized to carry out any undertaking, may, after receiving written authority from the minister, enter upon, use, occupy, take, and acquire, any lands other than Crown lands, or any interest therein that may, in the opinion of the minister, be required for the undertaking, and thereupon all the provisions of The Expropriation Act, which are, and in so far as they are, applicable to the taking and acquisition of lands by any person, apply as if they were included in this Act.
This section applies and extends to any person who, prior to July 15, 1930, had obtained from the Minister under the Dominion Water Power Act a licence to carry out an undertaking in the province and who, under the provisions of the licence and the Dominion Water Power Act, had the right and power to enter upon, use, occupy, take, and acquire, any lands other than Crown lands or any interest therein.
This section does not apply or extend to lands belonging to any railway company that are used or required by the company for the purposes of its railway.
Where a permit, lease, or licence, has been granted or issued, or the Crown has entered into any agreement or other form of conveyance under which Crown lands that are required, or any interest in which is required, for an undertaking are occupied or held in a manner inconsistent with the carrying out of the undertaking, the Lieutenant Governor in Council may order and direct the cancellation of the permit, lease, licence, or agreement, in whole or in part, or may direct that the terms thereof be so modified as to reserve to the Crown those lands or such rights in the lands as may be required for the undertaking.
In every case compensation shall be paid to the permittee, lessee, licensee, or party to the agreement or other form of conveyance.
In the case of a complete cancellation, the compensation shall include such sums as have been actually paid to the Crown on account of the lands and expended for improvements thereon, with interest at the rate of 6% per annum, as well as an amount to cover the estimated actual loss or damage, if any, sustained by reason of the cancellation.
In the case of partial cancellation, the compensation shall include the actual reasonable value, if any, of the lands or interest therein taken.
The minister shall in each case fix the amount of the compensation to be paid, subject to appeal, only as to the amount of compensation, to the Court of Queen's Bench.
Where two or more water powers are so situated that they can be more economically and satisfactorily utilized by being developed jointly and operated under one control, and
(a) if those water powers have not been granted by the Crown, the Lieutenant Governor in Council may, subject to subsection 6(2), order that they be disposed of in such manner, and subject to such conditions, as will, in his opinion, secure the joint development and single control; or
(b) if the right to develop one or more of the water powers has been granted to, or is held by, any person, and if the Lieutenant Governor in Council is of the opinion that the public interest will best be served by reserving the remaining water power or water powers so as to bring about the joint development and single control of all such water powers, the Lieutenant Governor in Council may order the remaining water power or water powers to be reserved for such period or periods as he may deem necessary in order to secure the joint development and single control, and may authorize the minister to enter into an agreement with the person holding the water power or water powers first mentioned for the purposes aforesaid, and may prescribe the terms, conditions, and covenants, to be included in the agreements.
INVESTIGATION OF WATER POWERS
The minister may direct or order
(a) such surveys and such other proceedings as may, in his opinion, be required to ascertain the Crown lands, or any other lands or any interests in any lands, that it may be necessary to reserve or acquire for any undertaking;
(b) a survey of all streams and all necessary investigations with respect to water powers to determine the total utilized and available water power and the maximum that can be made available by storage, regulation, or other artificial means;
(c) that the volume or discharge of any stream or body of water, or of the economic availability or usefulness thereof for power purposes, be ascertained;
(d) that the flow or quantity of water used, and of the output of electrical or other form of energy produced from the use of water by any licensee or other person, be ascertained;
(e) the establishment of gauges, weirs, meters, or other devices for water or water power measurements or for measuring the output of electrical or other form of energy ;
and the decision of the minister under clause (a) as to the lands or interests therein that may, in any case, be required is final.
The records and plans of the surveys and investigations shall be kept on file in The Water Resources Branch and may be published in such form, and to such extent, as the minister may determine.
The minister or any person appointed by him for the purpose, shall have free access, in connection with any of the matters herein set out, to all works, books, plans, or records, in so far as they relate to any undertaking, and may take such observations, make such measurements, and do such other things of, upon, within, or with respect to, the undertaking, books, plans, or records, as may be considered necessary or expedient for
(a) ascertaining the quantity of water stored, diverted, or used, or capable or being stored, diverted, or used;
(b) ascertaining the amount of power developed or capable of being developed;
(c) ascertaining the condition of the works, or any of them;
(d) determining whether the conditions to be observed or performed by any licensee, lessee, or other person, or any of them, are being satisfactorily observed and performed;
(e) any other purpose connected with the administration of this Act;
and the findings of the minister, with respect to the quantity of water stored, diverted, or used, or capable of being stored, diverted, or used, or the amount of power developed or capable of being developed, are final.
The minister may enter into co-operative agreements with the proper authorities of Canada for the making of stream measurements, the carrying on of investigations, and the collection and publication of data respecting water and power resources and the best methods of utilizing them.
All investigations and surveys and all undertakings shall, subject to the control of the minister, and for the purposes of this Act, be under the direction of the director.
LIEUTENANT GOVERNOR IN COUNCIL
For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders,
(a) for the storage, pondage, regulation, diversion, carriage, or utilization, of any water for power purposes and for the protection of any sources of the water supply;
(b) for the development, transmission, distribution, sale, exchange, disposal, or use, of water power on, through, or over, Crown lands or any other lands;
(c) for the construction, maintenance, operation, purchase, and taking over, of all works that may be deemed necessary or desirable for any of the purposes set out in this Act, whether on, over, or through, Crown lands or any other lands, and for the regulation and control, in the interests of all water users, of the flow of water that may, from time to time, pass through, by, or over, any such works;
(d) for the use and occupancy of Crown lands and other lands or of any interest therein for any of the purposes set out in this Act;
(e) for the withdrawal from disposal, under any other Act, of any Crown lands or of any interests therein required for any purposes under this Act;
(f) for the granting and administering of rights, powers, and privileges in, or with respect to, water powers or undertakings, and the administering of the rights, powers, and privileges, acquired before July 15, 1930;
(g) prescribing the conditions upon which the works, lands, and properties, held in respect of any undertaking may be taken over upon the expiration of the term of any agreement, lease, or licence, or upon the termination, thereof, for non-compliance with any of the covenants, terms, or conditions, contained in the agreement, lease, or licence, or for any other reason;
(h) for the construction, by or at the instance of the Crown, of regulation or storage works for regulating or augmenting the flow of water required for power and other purposes, for the purchase or taking over of works already constructed, and for the dividing and collecting of the cost of constructing, maintaining, and operating, the works among all persons benefiting or in a position to benefit therefrom;
(i) for the securing of such power output at any site, within the limits of its capacity, as may be required to supply the public demand and the securing of the maximum power resources of all streams;
(j) for fixing the rental, royalties, fees, dues, or charges, to be paid for the diversion, use, or storage, of water, for the use or occupancy of lands, or for any other privileges granted in pursuance of this Act, including charges for any additional flowage created by storage or regulation works constructed by or at the instance of the Crown;
(k) for regulating the passage of logs, timber, and other products of the forest, through or over any dams or other works erected under the authority of this Act;
(l) for requiring any person authorized to carry out an undertaking to construct fishways, to permit the free and unobstructed passage of fish up and down stream at any season of the year, and to require their operation in accordance with The Fisheries Act and any regulations made thereunder;
(m) for the appraisal, for any of the purposes of this Act, of the works, lands, and properties, required or used in connection with any undertaking;
(n) for regulating and controlling the stock and bond issues of persons establishing or conducting undertakings; for regulating and controlling the service given to the public by persons engaged in supplying water power; for regulating and controlling the rates or charges for such service; for the appointing or the designating of The Public Utilities Board to regulate and control the stock and bond issues, service, rates, and charges; and for the appointing of a person to act with any existing authority constituted for the purposes of regulating and controlling the said matters or any of them;
(o) prescribing the manner in which accounts shall be kept for the purposes of this Act by persons conducting or managing undertakings, and requiring the submitting of statements and reports, annual or otherwise, by the persons;
(p) prescribing the forms to be used in proceedings under this Act;
(q) for any purpose deemed necessary for giving full effect to this Act; and
(r) subject to such terms and conditions as the minister may prescribe, for the granting of temporary permits, leases, or licences for the temporary occupation of lands reserved for the development of water power.
Every order or regulation so made shall, unless otherwise specially provided in this Act, have force and effect only after it has been published in The Manitoba Gazette; and all such orders and regulations shall be laid before the Legislative Assembly within 15 days after the first day of meeting thereof.
Such engineers, inspectors, officers, and employees, as the minister considers necessary, may be appointed as provided in The Civil Service Act.
The Government of Manitoba may enter into arrangements or agreements with the government of any province or provinces and with the Government of Canada for the establishment and constitution of a board which, when established and constituted, shall have jurisdiction to regulate and control the use of inter-provincial boundary waters, or boundary waters between the province and the North-West Territories, and waters in any stream or streams that flow through more than one of the provinces, or through one or more than one of the provinces and the North-West Territories, and to provide penalties for the breach or failure to obey any order of the board.
After the establishment and constitution of the board the minister may, out of moneys appropriated by the Legislature for that purpose, defray the share of the government of the expenses incurred or to be incurred by the board.
The Lieutenant Governor in Council may appoint a representative or representatives of the government on the board.
The board has such power and authority as is vested in it by the agreement establishing and constituting the board.
The Court of Queen's Bench may make, alter, or annul, rules of court for the purpose of carrying into effect the provisions of this Act conferring powers of jurisdiction upon the court, and in particular for regulating, pleading, practice, or procedure, in the court relating to matters brought before it under this Act whether by way of appeal or otherwise.
All rules or amendments or additions to the rules shall be published forthwith after the making thereof in The Manitoba Gazette.
All rules made hereunder and all forms, tariffs, and Schedules, appended thereto are part of this Act.
The court has the same jurisdiction as to costs or otherwise as in matters in court under its jurisdiction.
Nothing in this Act repeals or modifies any provision of The Water Rights Act, or affects any of the powers granted to the Lieutenant Governor in Council or the minister under this Act.