Proceedings of the Standing Senate Committee on
Energy, the
Environment and Natural Resources
Issue 9 - Evidence
OTTAWA, Tuesday, June 9, 1998
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-31, respecting Canada Lands Surveyors, met this day at 9:40 a.m. to give consideration to the bill.
Senator Ron Ghitter (Chairman) in the Chair.
[English]
The Chairman: We have a quorum. Please proceed.
Mr. Michael O'Sullivan, Surveyor General and Director, Natural Resources Canada: Bill C-31 is proposed legislation regarding the Canada Lands Surveyors Act. This is a unique bill, in that it will create the first federally regulated, self-governing profession in Canada. The introduction of this bill caps an eight-year process preparing the Association of Canada Lands Surveyors (ACLS) to assume self-governing status. It has taken so long because there are no federal models for the drafters to follow. There are many provincial, self-regulating surveying associations in Canada. We have incorporated the best of their acts into this bill.
The Board of Examiners for Canada lands surveyors is currently housed in the federal government and specifically in the Earth Sciences Sector, Geomatics Canada, Natural Resources Canada. It goes back a long way, some 123 years. It was created first in 1875 in the Dominion Lands branch of the Department of Secretary of State. The first commission as a Dominion Land Surveyor (DSL) was issued in 1875. These are the famous DLSs that you have heard so much about.
Senator Lynch-Staunton eloquently described that in the Senate. The largest survey project in Canada was a layout of the townships, all those wonderful sectional townships you see in the West. The second-largest project in the history of Canada is currently underway, and it is carried out by Canada lands surveyors, who are the successors to the Dominion Land Surveyors. This is a survey of the comprehensive native land claims in the North.
The Board of Examiners is responsible for creating commissioned, regulated, disciplined, Canada lands surveyors. The current Canada Lands Surveys Act replaces the Surveyors Act. The Canada Lands Surveys Act dates back to 1950 in its current version. It is a multi-purpose act under the Minister of Natural Resources Canada. It regulates a survey system on Canada lands. It creates my office, the Office of the Surveyor General, and it creates the Board of Examiners for Canada Lands Surveyors, to regulate the profession.
The current composition of that board is the Surveyor General as Chairman, and four members who were appointed by the minister, who are specialists in the various fields of land surveying.
Bill C-31's main objective is the transfer of responsibilities for the Board of Examiners for Canada Lands Surveyors from Natural Resources Canada to the ACLS. Those parts of the Canada Lands Surveys Act pertaining to the Board of Examiners will be removed and form part of Bill C-31.
The ACLS is a non-government organization of Canada Lands Surveyors. It was incorporated under federal letters patent in May, 1985, and there are currently 450 Canada lands surveyors members across Canada.
Since this act passed, a Canada lands surveyor must be a member of the ACLS. This is to perform legal surveys on Canada lands. Legal surveys are those which actually determine the property boundaries. The surveyor must also obtain a licence from the ACLS, and he or she will also have to obtain appropriate liability insurance. A business must have a licensed Canada lands surveyor on staff and obtain a permit from the association.
Now the ACLS will have the normal self-regulating powers and attributes of any self-governing professional body. There will be a council of management, a registrar, a board of examiners that reports to the council, a complaints and discipline process and the appropriate committees, and control of professional standards of conduct. They will make regulations and by-laws. The Surveyor General will retain control of the technical standards of surveys and related documentation. That is because the federal government is still by far the largest landholder of Canada lands, so they are certainly the largest stakeholder.
There are 11 legal-surveying jurisdictions in Canada: the 10 provinces and the Canada lands jurisdiction. The surveying in each of the provinces is regulated by a self-governing professional association in which membership is mandatory. We are coming into line with this. This is not out of line with what is occurring in the provinces. At the current time, there is no self-regulating body for Canada lands surveyors.
Canada lands are defined in subsection 24(1) of the Canada Lands Surveys Act. They are public-domain lands held in trust for the people of Canada by the government. They include the Yukon Territory, the Northwest Territories, and certainly the new territory of Nunavut, when it comes into being, all the approximately 2,600 Indian reserves in Canada, the national park system, the offshore areas of Canada, wildlife sanctuaries, historic canals, and historic sites.
Here is a map of Canada lands. They represent over half of the land mass of Canada; the northern territories and the arctic islands. The green areas are the national parks system, and if you look into the provinces, all of those red dots are the Indian reserves. These form basically black holes within the province because they are federally owned lands, but nevertheless, they are Indian reserves. They form part of the Canada lands survey system. The dark blue area, the offshore areas, are part of the Canada lands survey system.
Why are we doing this? It is part of the effort to eliminate and streamline agencies. This was announced by the federal government in 1994. The ACLS will create and operate a complaints and discipline process for professional standards. The Canada Lands Surveys Act was inadequate in that regard. This is a new era in the governance of this profession.
The ACLS will create and operate a practice review program and will maintain a continuing education program, which is important for self-governing professions today. They are all contemplating mandatory continuing education programs.
Basically, this will bring the ACLS into line with all the other self-regulating, professional, surveying associations in Canada. There will be some cost savings, and those will come mostly from the federal government not having to set up the complaints and discipline process, which currently does not exist there now. If they had to set that up, they would be doing it at some expense.
We shall now address the bill's organization. Certainly, there are the introductory provisions. The yellow sections deal with the functions of the ACLS itself, its structure, its by-law making powers, et cetera.
The third section deals with commissions, licences, liability insurance and permits for companies. The fourth section deals with regulation-making powers, offences, reporting requirements and some general provisions. Lastly, there are the consequential amendments and transitional provisions to the Canada Lands Surveys Act, and the coming-into-force provisions.
This bill will remove the responsibility for the Board of Examiners from the federal government to the ACLS, which will become a federally regulated, self-governing, professional body. As such, it will regulate the profession in the same manner as the provincial associations, and also in line with other professions like lawyers, engineers, architects, et cetera. This will bring the Canada lands surveyors in line with everyone else. It will improve the regulation of the profession and get the functions out of the government.
Mr. Peter Hammond, Legal Counsel, Natural Resources Canada: Mr. O'Sullivan spoke of the current Board of Examiners. You will notice in the proposed act, Bill C-31, that we have significantly improved in the areas of procedural fairness and the discipline and complaints process. Basically, in the old act, they were dealt with in one section. The new act proposes that these new issues be set up in a comprehensive way, where they have really come to light. When the act was made in the 1950s, procedural fairness and such matters were not as great a concern as they are now, in the light of Charter issues. That is one area where we feel that there has been a significant improvement.
The Chairman: You raised the matter of judicial fairness. When I went through the complaint process to determine the various steps that you go through, I found it lacking in that regard because it did not really clarify the position of the person against whom a complaint is levied as to what their rights are. All it really says is that, at the first stage, you have no right for a hearing of any nature. In fact, Section 26 said that the complaints committee is not required to hold a hearing, so I assume that they are looking to see if there is a prima facie case to carry on. There is no requirement.
However, at the next stage, it does not really set out anything relative to the rights of the person complaining. Can they have counsel? Is it a hearing? Subsection 28(a) says: "subject to section 29, hear and determine allegations." What does that mean to you, from the point of view of the accused?
Mr. Hammond: It is the right to know the case against you and the right to respond to those allegations.
The Chairman: Are you satisfied that "hear and determine" gives the person against whom a complaint is levied full opportunity to have counsel, to be heard, to face his or her accuser?
Mr. Hammond: Yes.
The Chairman: Is there judicial authority to suggest that that is correct?
Mr. Hammond: Yes. When we had this reviewed by the justice people downtown, they told us that the biggest problem with procedural fairness is not what is in the legislation per se, but how the panel actually carries it out. Even if you describe all the minute things that must be done, when the issue arises, it is usually how the panel carried out the hearing.
The Chairman: So "hear and determine" in your view compels the tribunal to provide all the mechanisms of natural justice from the point of view of the person against whom the complaint is levied? Is that your position?
Mr. Hammond: Yes.
Senator Cochrane: You were mentioning how this will mean cost savings, for the government, I presume. Could you just give us some idea as to how much will be saved? Do you have an estimate?
Mr. O'Sullivan: I am not sure that I can put a number to it. In terms of people, I currently receive a $5,000 honorarium for my responsibilities as Chairman of the Board. The other four members of the board also receive an equal amount. This is a working board. We do not just meet. We set examinations, for example. We meet a number of times during the year in different parts of Canada. There are those costs, plus the associated travel costs, the costs of the secretariat, and of file management. Up until recently, it was managed by one person, at a salary of approximately $50,000.
The main cost savings will be the fact that the federal government is not required to set up a complaints and discipline process. I did not put a particular number to that, but two committees are involved here, as are their associated travel costs, given that this jurisdiction goes from sea to sea to sea. If these processes must be set up, with representation from across Canada, this could be quite expensive. I hesitate to put a number on it, but it is certainly greater than the costs I have outlined to you, in terms of the secretariat and the board itself.
Senator Cochrane: You mentioned that the association will be able to investigate complaints and impose penalties, if need be. Is there a process or some sort of a mechanism in place now where this happens?
Mr. O'Sullivan: Under section 16 of the current act, the Board of Examiners' powers are woefully inadequate. For example, the only grounds we can use these days are corrupt practice and gross negligence. Those among you who are lawyers will understand that proving gross negligence in the context of legal land surveying is practically impossible, if you go into the legal definition of gross negligence.
In the past, the Board of Examiners has had difficulty carrying out discipline procedures. I know of one case where we had successfully prosecuted a lands surveyor, but could not carry out discipline procedures.
The process, under this act, is much more comprehensive. A lands surveyor may be found guilty of professional misconduct for a number of reasons, whether it is incompetence or an ethical breach, or a whole series of things including fraud or whatever. This is a much more comprehensive process. It is also not a new process. In most of the other professional self-governing associations, it includes a discipline committee with lay representation. So, it is quite a process.
Senator Cochrane: This is a self-regulatory body, is it not? I believe that the minister has power within this body?
Mr. O'Sullivan: Yes, it is self-regulating and the minister has ultimate authority. In the event that the association was not to fulfill its main obligations and aims, that is, to protect the public when it comes to legal lands surveying, the minister has the power to step in and take over any or all of the association's functions. This would only be done in an extreme situation where it became evident, probably reported by the lay members, that the association was not carrying out its functions.
Senator Adams: Are the witnesses familiar with the new park for the migration of the caribou around the Inuvaluit area? There is concern about using the park area for caribou migration and calving, for the land may also be rich in oil and gas. Who will make the decision as to what happens to this land? How does the system work? Does the government make decisions for the organizations?
Mr. O'Sullivan: In terms of the policy in setting up the park, this was not a function of either my office or the ACLS. Parks Canada would have the main responsibility for that.
When it finally comes time to demarcate the exterior boundaries of that park, I would like to become involved. I would be contracting the work out to this association's members, but the policy matters are not under my bailiwick.
Senator Adams: What about a mining survey? I know it has been surveyed already. There is talk about mining gold and diamonds in the future. In the meantime, eastern and western companies are making many claims in that area. They figure there will be mining, oil or gas in the future. Do they still get the permit from Ottawa or do they now get it from the community? Will there be a settled claim, or how does the system work now?
Mr. O'Sullivan: Again, this is a function of mining regulations in the territories. We and ACLS members only become involved at such time as these things are surveyed, to bring them to lease. Staking is not our function.
Senator Lynch-Staunton: I must declare again my personal -- but not material -- interest in this bill, as my great-grandfather came from Ireland and became a Dominion Land surveyor. I have done a lot of research on him and on the profession.
The way clause 43 reads is a bit scary, in the sense that the licence holder "may, for the purpose of cadastral surveying, enter, pass over and measure the land of any person but shall take all reasonable precautions to avoid causing damage in so doing." It reads as if the surveyor can enter the land at any time without notifying the owner, resident or occupant. Is that correct?
Mr. O'Sullivan: That is what it says, and it appears draconian when you read it. This provision is by necessity in every Canadian lands-surveying act. The lands surveyor is in reality a public officer. The lands surveyor may be surveying your particular property, for you are paying his bill, but in fact he is legally obligated to respect the rights of all the adjoiners equally to yours, realizing that we are surveying the boundaries between your property and the adjoining interests. The surveyor does that without favour, affection or partiality.
In doing a lands survey, the objective is to place the corners back where they were first established, which means sifting through the evidence of former surveys. In areas where much of the evidence has disappeared, the surveyor may be required to go quite far afield to build the survey fabric back up, which means entering or passing over the land of many people.
Ethically, we attempt to notify owners when we will be there. This is not always possible. We cannot have a situation where an owner forbids the lands surveyor to carry out his duties, again fulfilling this quasi-judicial role that the lands surveyor must fulfill. This is why this section is necessary; it protects the public as a whole. Where the lands surveyor is responsible as a public officer, he must reconstruct the original land boundaries.
Senator Buchanan: What section are we talking about?
Senator Lynch-Staunton: We are on page 14, section 43. Can a surveyor go on land, including private land and provincial land, without the owner's permission?
Mr. O'Sullivan: Yes.
Senator Lynch-Staunton: We are seeing a lot of that now in Quebec after the ice storm. Quebec Hydro wants to put in some new lines and they are sending surveyors in, much to the discontent of landowners. The surveyors show up without warning and start putting in stakes, and so forth.
Mr. O'Sullivan: All the lands-surveying associations are sensitive to this. They recognize the public's sensitivities when a lands surveyor suddenly appears on the property. They are ethically bound to make every attempt to notify the owner that they will be there. Nevertheless, they cannot be placed in a situation where they are forbidden access. There may be a piece of evidence that a lands surveyor must consider. In surveying somebody else's boundaries, they are respecting the boundaries of all the adjoiners. It is important that they be able to do so.
Senator Lynch-Staunton: Can a surveyor clear land to be more precise in his survey, if there are trees, bushes or a wall in the way?
Mr. O'Sullivan: This is a sensitive area. The section talks about being responsible for any damage. Certainly in sparsely populated, forested areas, the surveyor must, by necessity, cut some line to see through. This usually would be done in consultation with the landowners. This is usually not a problem because the landowner requests the survey.
In populated areas, this becomes more of a problem. Many times you will see a lands surveyor trying to hold growth out of the way while someone tries to look down the line without having to do any cutting. Certainly, a surveyor is liable for any damage he creates.
Senator Buchanan: Is there a jurisdictional problem when a federal surveyor enters private lands in the province without the consent of the landowner?
Mr. O'Sullivan: That would only be a problem on a jurisdictional boundary, say the exterior boundary of a national park in a province or the exterior boundary of an Indian reserve, where you have provincial lands on one side and Canada lands on the other.
The act specifically says that where the rights of provincial lands could be affected by the survey of a jurisdictional boundary, these surveys must be carried out by a provincial lands surveyor within that jurisdiction. As a matter of policy, we try to have a lands surveyor who has both a Canada Lands Surveys commission and, if it was in Saskatchewan, a Saskatchewan Land Surveyors commission. There would then not be a problem to the surveyor gaining access, in terms of either the provincial or federal act.
Senator Buchanan: The surveyor would be a provincial surveyor under their act and a federal one under this act.
Mr. O'Sullivan: That is right.
Senator Gustafson: Does this bill have jurisdiction over PFRA land, pasture land sold by the Crown? You do not indicate that here in your lands survey. There are large pockets of land in the Prairies, especially in Saskatchewan, that are under the PFRA. Would that be the same as the reserves?
Mr. O'Sullivan: To my knowledge, this would not be included in Canada lands. They must be provincial lands. I have never heard that term used in the definition of Canada lands or in the Canada Lands Surveys Act.
Senator Gustafson: I would be surprised if they were under the provinces because the federal government administrates the pasture land under the PFRA. There are many oil wells in that pasture land that would be under federal supervision, I would think, and that this act would probably cover, which raises a lot of questions.
Mr. O'Sullivan: To my knowledge, those are not included in Canada lands. Certainly, they are not in the definition of Canada lands.
Senator Gustafson: It seems surprising to me.
Senator Lynch-Staunton: Will the Official Languages Act still apply to you under the new scheme?
Mr. O'Sullivan: This particular organization will not be a government organization as such, but certainly in my office, the provisions of the Official Languages Act apply to my office and myself.
Senator Lynch-Staunton: At the moment, the Official Languages Act applies to the department and to Canada lands surveyors in terms of employment.
Mr. O'Sullivan: It only applies to those employed by the federal government. The ACLS will be a stand-alone professional association.
Senator Lynch-Staunton: They will have to abide by the obligations. We are finding now that as government privatizes, the obligations of the Languages Act are sometimes not continued in the new association. I wonder if there is anybody from the government who could explain why?
I do not want to boast, but when we were transferring the management of airports to local airport authorities, we made sure that the specific parts of the Official Languages Act that applied were continued in the obligations of the airport authority in the management, to make sure that there was no prejudice against existing and any future employees.
There was a debate in the House of Commons the other day where an amendment was put in at the last minute to make sure that the Official Languages Act, to some extent at least, was pertinent to the new Parks Canada organization. I have not found anything in this act which would allow that continuation. That is a flaw that should be looked into. Hopefully, it is not deliberate.
Mr. O'Sullivan: This has not been brought up. The surveys currently carried out on Canada lands are 99 per cent by contract from the federal government to Canada lands surveyors in the private sector. So, certainly any Canada lands surveyors on my staff are subject to the provisions of the Official Languages Act. But in terms of getting the actual work done, there is no requirement on the part of the private-sector lands surveyors to come under that act. This will be no different once they have self-regulating status.
Senator Lynch-Staunton: How many lands surveyors are there in the government now? How many can actually be considered government employees?
Mr. O'Sullivan: There would be around 50.
Senator Lynch-Staunton: Did they take the official languages test?
Mr. O'Sullivan: In the areas of Canada where there is a requirement, certainly in Ottawa for example, and in our office in Quebec, yes. In Alberta and British Columbia, no.
Senator Lynch-Staunton: Will the new association be bound to abide by the Official Languages Act test in the hiring of any new surveyors?
Mr. O'Sullivan: It does not hire surveyors. The federal government will continue to contract out things like land claims.
Senator Lynch-Staunton: You said that there are 50 government employees at the moment who will be transferred to the new association?
Mr. O'Sullivan: No, they will continue to work for me.
Senator Lynch-Staunton: Will they stay with the government?
Mr. O'Sullivan: Yes, and they will be subject to the act.
Senator Lynch-Staunton: Maybe the problem I am raising does not exist then?
Mr. O'Sullivan: This will not change anything.
Senator Lynch-Staunton: I thought that personnel were transferred at the same time that the association was being created.
Mr. O'Sullivan: No. I am probably the only person who was transferred. Instead of me being Chairman of the Board of Examiners, I will now sit on the council. That is the only difference.
Senator Lynch-Staunton: That reassures me.
Senator Buchanan: I noticed that Canada lands include the offshore. In 1982, we negotiated and signed a federal-provincial agreement, the Canada-Nova Scotia Offshore Agreement. It was revised, and another one was signed in 1986. Both were put into the law of Nova Scotia and Canada by mirror legislation.
The offshore board jurisdiction for the disputed area off Nova Scotia was not resolved by a court, but by agreement. That included setting up the Canada-Nova Scotia Offshore Board, which has jurisdiction to administer that offshore area off Nova Scotia. Also, there was a Canada-Newfoundland Board established under their agreement. What is the jurisdiction there?
Mr. O'Sullivan: We do not get involved in this policy issue. We know that there is a dispute in the ownership of offshore resources. That is a federal-provincial problem and is outside the jurisdiction of the lands surveyors, who are only responsible for the management of the offshore property rights system.
Senator Lynch-Staunton: What we are doing here was not done in the House of Commons. This bill was rushed through with all-party consent one afternoon when there were so few people in the chamber that they had to call for a quorum. There was nobody on the government side and there were complaints by the opposition. I just want to point that out. When we get criticized for not doing our job, those who point the finger should look in the mirror first. It was quite a pathetic performance. One could say that this is a non-controversial bill, but every bill is important and should be looked at carefully. We are doing the job that should have been done over there, and we are doing it well. I wanted to put that on the record.
Senator Buchanan: Would the dispute now in the media about offshore seismic vessels and the manning of those vessels, whether foreign or Canadian, be within your jurisdiction?
Mr. O'Sullivan: No.
The Chairman: I wanted to explore section 44, which I think gives remarkable powers to a lands surveyor. As I understand section 44, if a licence holder, which means one of 450 registered lands surveyors across this country, is engaged in a survey and cannot get information from an individual, they may go to a justice of the peace and get a subpoena. If the person does appear, the licence holder can act as a court, examining this person to get information. If the person does not appear, the licensee can then get a subpoena.
I do not know of any other situation where an untrained legal person has the powers to question and examine. They can merely appear by affidavit before a justice of the peace and get these extraordinary powers.
I went into the other legislation to see if these powers exist elsewhere in Canada. In Nova Scotia, they do not go to a justice of the peace, they go to a judge. If they then wish to conduct the examinations, they will do so before the judge. Here, the examinations can be conducted out in the wilderness, for all intents and purposes. Some poor individual can be subpoenaed and have a lands surveyor, with no legal background, subject him to an inquisition. I would like your comment on what I feel are these remarkable powers.
Mr. O'Sullivan: First of all, legal lands surveyors are trained in the gathering and sifting of evidence. This is not a unique situation. I am not familiar with the situation you describe in Nova Scotia. I am familiar with it in a number of other provinces, where the rights of a lands surveyor to examine a person under oath are in fact contained in the provincial acts.
This is necessary because there are various forms of evidence regarding property boundaries. For instance, an elderly person who may have seen the original placement of a boundary monument, and who knows where that position was exactly -- a couple inches off that old rock over there -- may be able to bring evidence to bear on a particular corner, which is crucial to the placement of the corners. That evidence must be gathered. This is part of the lands surveyor's duty, to gather all the evidence respecting the position of a corner, keeping in mind that his duty is to place the corner back where it was originally, not where the measurements might say it ought to have been.
It is a matter of getting the best evidence. One of the ways to get it is verbally, from the memories of people who actually saw or have evidence of the original location of a corner. That is why lands surveyors have the power to examine people under oath. It is crucial when you think of the value of land and its proper demarcation, so that we can live peacefully with each other. It is necessary that the lands surveyors have this function, to be able to place things back where they were.
The Chairman: I might have a reason why I do not want to tell the lands surveyor the situation, or I might have a feeling that if do, I might want certain privileges that a court may allow.
I have no trouble with the surveyor seeking the information, but it would seem to me that that is what our courts are for. I would not want to be examined by an untrained individual who is waving a subpoena and saying, "Answer my questions."
I do not know of any similar legislation, anywhere, where such powers are granted. Can you give me examples of other professions? Lawyers do not have that power. If they do not have it, nobody should.
Mr. O'Sullivan: I might argue with you on that. Lands surveyors have a unique role to play in society. It is a quasi-judicial role, the role of public officer. This particular provision has worked well in Canada for over 200 years. I really do not see that there has been any complaint. This law is probably not applied very often, but the surveyors, given the task that they need to do, must have powers of this sort.
The Chairman: If I were to read from the Nova Scotia legislation, "The evidence on the examination before the county court judge shall be transcribed as directed by the county court judge and when certified by the person taking the same as correct shall be deemed to be the original deposition." Basically, everything that is done is done within the trappings of a judicial process because individual rights are being affected here. Do you not think that would be a better way of doing it?
Mr. O'Sullivan: I have seen many instances where it is probably not very convenient for the lands surveyor to drag someone into court, especially in rural areas. All that this means is that one of the duties of a lands surveyor is to gather all this evidence, and in so doing, he talks to the property owners. This says that he can take this evidence down in the form of an oath.
Senator Buchanan: Those amendments to that bill you looked at, as progressive as it is, were passed sometime between 1977 and 1990.
The Chairman: Chapter 249 is one of your favorites.
Senator Buchanan: We passed that.
The Chairman: Is this process contained in the bill as a matter of convenience?
Mr. O'Sullivan: It is more than a matter of convenience. It is the matter of having the sworn testimony of a witness as to a corner, which I think would certainly give the evidence more weight than if he was just to take the oral evidence of a witness to a corner.
The Chairman: Is the licensee taking sworn evidence, Mr. Hammond? When he goes with the subpoena in hand to the poor property owner and says, "You must speak to me," is that under oath? Are depositions taken? Is there any transcription of the testimony that is being given to the licence holder?
Mr. Hammond: Section 45 may be of assistance here, where, "All evidence produced at a hearing before a licence holder under section 44 shall be (a) put into writing; and (b) read to the witness by whom it is given and affirmed by the witness and the licence holder." So you have consent as to the content.
Senator Lynch-Staunton: Section 44(c) reads, "take evidence...before the licence holder under oath..." Is that what you are asking?
The Chairman: Yes. I am trying to understand what process is being followed. Would you explain? I have been served with a subpoena and told to appear; what happens from there?
Mr. Hammond: A person will appear before me, tell me what they tell me, and then I will ask them, "Do you swear the contents to be true?" or "Do you affirm the contents to be true?" They answer yes or no and they sign, under oath.
The Chairman: I mean no disrespect to lands surveyors, but will they then give the oath to the individual, or will they put it in writing themselves? There will be no court reporter there. What is the process?
Mr. Hammond: The process would be that the two parties would put it into writing and sign it.
The Chairman: I do not want to do that. I am subpoenaed to appear; it is against my will. I am there. What happens? I do not want to put anything in writing.
Mr. Hammond: The next step would be to apply for a warrant, and if the justice of the peace figured that a warrant was not worth issuing, then it would not be issued.
The Chairman: Would it not be better to follow the Nova Scotia example and have the testimony dealt with on a proper basis? I would imagine that if a situation arises where someone refuses, there must be strong reasons. It would be very infrequent, but if it is that acute a situation, would it not be better to follow the Nova Scotia example, rather than this type of prairie justice that seems to be evident in this bill?
Mr. O'Sullivan: I would argue that this is not prairie justice. In fact, this particular way of proceeding has worked well for a few centuries. I do not see where there has been any abuse or complaints regarding this. Most landowners are quite eager to bring this evidence forward, and usually these people are stakeholders regarding their own particular boundaries. As such, I am sure that they have a stake in wanting these things right. It is important that their testimony be more than hearsay, and be put in the form of an oath.
In my career, which spans many years, I have never had a problem in that regard with someone actually refusing or not wishing to participate in the process. It happens very infrequently.
The Chairman: I appreciate that, but nevertheless, there is a lengthy section in this bill that deals with that unique circumstance. If it is a unique circumstance, it should be dealt with in a judicial way.
Mr. O'Sullivan: Again, the lands surveyor behaves in a quasi-judicial fashion, in terms of sifting the evidence to re-establish boundaries. I can think of situations in the North, for example, where the surveyor would be in a remote location, where it would be very onerous to bring someone to the nearest settlement or wherever you can find a judge or a justice of the peace, or whoever is required to actually gather this evidence. It might be unreasonable to expect a lands surveyor to go through that process.
The lands surveyor is trained to gather evidence. I remember my training in how to take this kind of evidence under oath. I have never heard of anyone refusing.
The Chairman: You do not need the section at all, then. If that is the case, why do we have the section?
Mr. O'Sullivan: The section is there to make sure that if evidence is out there, the surveyor can gather it.
Senator Lynch-Staunton: What kind of evidence would someone withhold? What would be the point of withholding?
Mr. O'Sullivan: I cannot see any point, unless, of course, the person figured that withholding evidence would prejudice a boundary dispute.
Senator Lynch-Staunton: He is trespassing on someone else's land and does not want that to be known, which happens quite frequently.
Mr. O'Sullivan: That can certainly happen. There are boundary dispute mechanisms, but a lands surveyor certainly wants to get at the truth. I am not sure that anybody withholding evidence as to the true position of a boundary should be accorded any rights.
The Chairman: What if the section were not there at all? What is the present situation? I take it that the present legislation does not deal with this point.
Mr. O'Sullivan: Yes, it does, under the Canada Lands Surveys Act.
The Chairman: There is an identical section to this?
Mr. Hammond: Section 20.
The Chairman: I guess the Senate committee at the time was not as concerned with individual rights as we are today.
Senator Buchanan: I am glad you brought that up. I had not read section 44. Are you saying that section 44(5) has not been challenged?
Mr. O'Sullivan: No.
Senator Buchanan: What would your opinion be if someone challenged it on the basis that the section itself is ultra vires? In other words, where does the federal government get the jurisdiction to grant the power to subpoena someone who owns private lands to a federal lands surveyor, a federal licence holder?
Mr. O'Sullivan: You will only run into private lands in the territories, where land has been alienated from the Crown. This act deals with Crown lands. It also deals with private lands in the territories, so you have jurisdiction.
Senator Buchanan: It has jurisdiction over private lands?
Mr. O'Sullivan: In the territories.
Senator Buchanan: For example, Cape Breton Highlands National Park is federal. Surveyors, licence holders, operate within the park. A federal licence holder decides that he wants some information from someone who lives outside the park boundary, and says, "If you do not give me the information, I will subpoena you." He is then challenged on the basis that it is ultra vires and that there is no legal jurisdiction to force him to give that evidence.
Mr. O'Sullivan: First of all, the lands surveyor that would carry out the work would have both commissions. If the survey was being done under the Canada Lands Surveys Act, there is a similar section in that act, which allows the person to gather evidence with respect to that particular boundary.
Now I do not see that it would be ultra vires for him to gather evidence with respect to the particular boundary. If something outside of that boundary sat on the provincial side, then the provincial lands surveyor, using the provincial commission at that time, would be subject to the laws of the province.
Senator Buchanan: Then the procedure that must be followed would not be this procedure, it would be a procedure contained in the provincial act.
Mr. O'Sullivan: It would, provided that it has reference to a corner that is not on the jurisdictional boundary. If he had moved away to the other side of the property on the provincial side, he would be subject to the provincial laws.
Senator Buchanan: This section would not apply at all.
Mr. O'Sullivan: It would apply in the jurisdictional boundary, not on the provincial side.
Senator Buchanan: If they wanted to get evidence on the provincial side, it must be obtained under the Province of Nova Scotia act.
Mr. O'Sullivan: That is right.
Senator Gustafson: My interest in this arises from a news release in The Western Producer, which indicated that on pasture lands, where lands are leased on a 99-year lease or whatever the period of time, that the farmers would no longer receive the surface rights on an oil well.
It would seem to me that there is a concern here on Indian reserves, for instance, the Grasslands National Park, which has large tracts of land. The surface and mineral rights are important issues on the Prairies, especially in Saskatchewan, where every section of land was held by the Crown and the others were owned individually by the farmers.
Now, according to this news release, there will be a major change. Does it come under this bill, and that is why there is a question under the PFRA? We have self-PFRA pastures in the area that have a numbers of oil wells. How does this bill refer to that?
On the reservations, for instance, under the Municipality of Corning, when land claims were settled with the reserve at White Bear, 10 per cent of the municipal land was taken for that reservation. Does the band receive the remuneration on the lands, or does the federal government control that completely? How is that handled?
Mr. O'Sullivan: This is something we are not involved with at all. This bill does not apply to that. This bill only talks about the Canada Lands surveyors and their duties and powers, restrictions, whatever. Those other things may fall under Indian oil and gas or whatever. We may end up surveying the parcels of land, but we have nothing to do with the associated policy issues.
Senator Gustafson: Who does the surveying?
Mr. O'Sullivan: We do.
Senator Gustafson: The White Bear Reserve has a lot of farm land which is contracted out mostly to local farmers. Some farm it themselves on the reserve. Somebody must receive permission to drive their four-wheeler across the field of wheat. Those kinds of things are quite controversial at times in our area.
Mr. O'Sullivan: The things that you are talking about fall under various other federal agencies, but they are not under Canada lands as such, except when you get on the reserves. Then we have the Indian Oil and Gas Act and the regulations that apply. We are only surveying.
Senator Gustafson: Would you check out the PFRA area?
Mr. O'Sullivan: I am sure that those are federal land interests, but they are not those of Canada lands. There are other federal lands out there like post offices, or, for example, the land that this building sits on, which are not Canada lands. Even though they are federally owned, they are owned in a different manner.
Senator Buchanan: Sable Island is an example of that. Sable Island is part of Nova Scotia, but the land area there is owned by the federal government; it is fee simple. The island itself is part of Nova Scotia.
Mr. O'Sullivan: It is not Canada lands, right.
Senator Butts: This act is to help provide for continuing education. Is the education of a surveyor today under the province?
Mr. O'Sullivan: No. First of all, our requirements in each of the provincial acts, in terms of what you must do to become a lands surveyor, are generally uniform across Canada now. It involves a four-year university program as a minimum. It also requires a period of articles, in most jurisdictions, something in the order of two years, where you are actually working in that particular jurisdiction. Each jurisdiction has its own specific requirements, but they are almost uniform now across Canada.
Senator Butts: Who will provide the continuing education?
Mr. O'Sullivan: It takes many forms. It could be extension courses from universities in other areas. Certainly, the profession is evolving, as is the technology, so consequently, in order to remain up-to-date with all of this, it is a lands surveyor's professional responsibility to maintain a personal program of continuing education. This can be done through seminars, attendance at conferences, or a number of different ways.
Senator Butts: Will this be mandatory to retain your licence?
Mr. O'Sullivan: At present, according to this act, it is not mandatory, but it does allow the association, if it so desires, to actually make it mandatory. That seems to be the trend these days. More and more, associations are getting into mandatory programs.
Senator Buchanan: Where does the school in Lawrencetown fit into your qualifications?
Mr. O'Sullivan: That is the College of Geographical Sciences, COGS. We have a number of people, technologists, who graduate from COGS. They will receive certain credits towards the academic requirements to become a lands surveyor. Supplementary courses will be added.
It is four years of university, a degree in geomatics engineering, for example, or the equivalent, and that may be through writing some of our examinations, which are university-level examinations. A common course across Canada has been adopted.
Senator Buchanan: The Lawrencetown school is considered to be one of the best in Canada, is it not?
Mr. O'Sullivan: Yes.
Senator Lynch-Staunton: Is that in Nova Scotia, by the way?
Senator Buchanan: Yes, I opened the big extension to it.
Senator Gustafson: I had a question in terms of the right to be a surveyor. What about the people who have a Grade 8 education who know more about oil -- this has happened again and again in the oil field -- who know more about surveying than anybody else. Somebody from a university may not have a clue what is happening. Some of the best people have learned everything in the field. What will happen to them? Will they have any security?
Mr. O'Sullivan: They do not have any particular rights today in terms of having a formal commission. This act will not change any of that. I suspect that this situation exists in all professions, where there are people out there who have qualifications and experience in various areas. But that does not give them the right, in any profession I know, to suddenly be called a lands surveyor or a lawyer or whatever.
If you give somebody like that some of the powers that are in this act, it would probably not receive this committee's approval. For example, I am talking about being able to pass over the land of any person without having the necessary qualifications.
Senator Gustafson: In other words, these people will all lose their jobs?
Mr. O'Sullivan: No, they will not have any rights that they currently do not have. Any rights that they have now, they will continue to have.
Senator Gustafson: But they will not get promotions?
Senator Buchanan: You brought up section 44. "... a licence holder who is engaged in a cadastral survey reasonably believes that a person has knowledge...."in law, the business of "reasonable belief" does not mean too much.
Let's say that federal lands are being surveyed in the Cape Breton Highlands National Park, and somebody says, "John O'Sullivan in Halifax knows all about it." The surveyor then contacts John O'Sullivan and he has no intention of talking to him at all. The surveyor then applies to a justice of the peace for a subpoena. Does the justice of the peace then have the jurisdiction to compel someone in Halifax or Sydney or wherever to appear before that licence holder up there in Antigonish?
Mr. O'Sullivan: In my estimation, the lands surveyor must satisfy the justice of the peace that this person has evidence that is crucial to the determination of that particular boundary. The justice of the peace would determine whether or not the subpoena will be issued.
Senator Buchanan: The justice of the peace makes that determination, but does the licence holder have the legal right to even go before him to try to compel someone outside the Cape Breton Highlands National Park to testify? It seems to me that it is ultra vires of the federal government.
Mr. O'Sullivan: The lands surveyor must be satisfied in his own mind that this person has evidence that is crucial to the case. Then he must satisfy a justice of the peace accordingly before the subpoena would be issued.
The Chairman: I feel that you sense that we have trouble with that particular section. The lawyers do not feel that you should be more powerful than lawyers. Thank you very much for appearing before us today. We appreciate your testimony.
I propose that someone present a motion that Bill C-31, an act respecting Canada Lands surveyors, be adopted without amendment. Would someone move that the third report of the committee be reported to the Senate?
Senator Spivak: I so move.
The Chairman: Senator Fitzpatrick seconds the motion. Is there any discussion?
Senator Buchanan: Should we look at an amendment there?
The Chairman: It is open for discussion, if colleagues feel that that is necessary.
Senator Buchanan: I do not think that John O'Sullivan should be compelled to appear just because his cousin in Ottawa thinks he should.
The Chairman: Is there any further discussion then? We have a vote. All those in favour? Any opposed? Thank you. We will report it.
The committee adjourned.