Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 65 - Evidence
OTTAWA, Wednesday, April 14, 1999
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 1:44 p.m. to give consideration to Proposals to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain Acts that have ceased to have effect.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum.
As the matters we shall be addressing today may be legally described as uncomplicated, I shall leave them completely in the hands of the witnesses to uncomplicate for us.
Please proceed.
Mr. Don Macpherson, Legislative Counsel, Legislative Section, Department of Justice: Honourable senators, I shall make some opening remarks about the background of the uncomplicated program and the series of housekeeping amendments that you have before you. As well, I shall address the criteria by which we are to judge how uncomplicated and uncontroversial they are. Finally, I shall speak about the procedure that has brought these proposals before you and about the procedure of the Miscellaneous Statute Law Amendment Program.
After I have made my introductory remarks, Hélène Rodrigue will bring you up to date on a package of amendments to the proposals before you which we have submitted as a result of other legislation that has moved through the House since the proposals were tabled in November 1998.
We shall then pass the floor to Vincent Kooiman and Andrée Dionne who will explain what the second part of the MSLAP, the Miscellaneous Statute Law Amendment Program, is all about. Basically, it updates the pre-revision references to the Income Tax Act and is a continuation of the work of the Statute Revision Commission.
As well, we have several witnesses who will speak to individual proposals that the research staff of the Library of Parliament has been good enough to identify as potentially controversial, although they were silent as to how complicated they were.
The MSLAP was born in 1975 as a law reform initiative. It was introduced by Otto Lang as a new vehicle to allow housekeeping of the statutes. Even then, the legislative agenda was very congested, which made it difficult to make minor changes or to correct everyday errors that occur in the statutes. Therefore, that program was established to make those changes without taking up too much of the time of either house.
On page 1a of the proposals, honourable senators will find some background notes on the program. This is the ninth set of Miscellaneous Statute Law Amendment proposals that has been considered by committees of either house.
In the middle of the page are the criteria used to determine which changes can be part this extraordinary procedure. The suggested amendment first must not be controversial. It must not involve the spending of public funds. The amendment must not prejudicially affect the rights of persons and the amendment must not create a new offence or subject a new class of persons to an existing offence.
The question of whether or not an amendment is controversial is really the main criterion of the program; the other criteria were developed subsequently. When former minister Lang introduced the program in his second-reading speech, he spoke about the main criterion for assessing proposals, that is, that they be non-controversial. He said that the determination of that criterion would not be difficult to establish and that a proposal would become controversial as soon as one of the parties expressed opposition to it.
Senators, we can assure you that if there is any substantive objection to a proposal in this package by this committee or the committee of the other place, that proposal will immediately be withdrawn and will not form part of the proposals that will go forward -- hopefully in a bill -- after the committees have done their work.
As to the procedure and the proposals in front of you, anyone can propose that a correction of an error in a statute be made. Most of these proposals have come from federal departments and agencies, although some have been submitted by private citizens and some even by publishers of the statutes. When the proposals came from government agencies, we asked that their legal services lawyers review the proposals against the program criteria before they submitted them to the legislation section.
In the summers of 1997 and 1998, the drafters got to work, drafted the proposals and prepared the package. We distributed the work among all the drafters. The drafters would take the files assigned to them, immediately assess the proposals against the program criteria and reject those that they felt did not meet the criteria.
Finally, the legislation section set up an internal review. Each drafter brought the proposals in front of a committee of the legislation section. Again, we assessed them and challenged them against the program criteria, retaining only those that we thought were acceptable.
The majority of the proposals that were made have fallen out on the threshing room floor and were not found to be acceptable under the criteria. These are the proposals that have been determined by the Department of Justice to be within the program criteria.
In any package, some proposals are more borderline than others under the criteria. The Library of Parliament has done an excellent job in bringing all of those to your attention in a research report that they shared with us identifying a number of proposals as potentially controversial.
We have asked witnesses to speak to the proposals we thought were the most controversial. We have three witnesses who will speak to particular proposals. Mr. Jeff Richstone will speak to a couple of Copyright Act amendments. Mr. Michael Richard will talk about Federal Real Property Act amendments. We have a guest from Alberta, Mr. Peter Noonan, who will answer questions about the proposals to amend the National Energy Board Act.
Honourable senators, your work is the most important part of the Miscellaneous Statute Law Amendment Program. It is to ensure that these proposals can be approved and introduced into Parliament. Generally, when they are introduced, they are read three times without debate and passed. This is effectively the real stage of the MSLAP, where we will be accepting proposals. Any that are rejected, of course, will not form part of the package.
Ms Hélène Rodrigue will explain to you the package of amendments since November 5, 1998, that we have put in your hands.
[Translation]
Ms Hélène Rodrigue, Legislative Counsel, Legislative Section, Department of Justice: I would like to comment briefly on the proposed amendments to the bill, in light of the tabling of certain bills in the House since we first brought in our own proposals on November 5, 1998.
We have forwarded to the committee a letter containing in table format a list of the proposals in question. Part one lists the proposals to be withdrawn, while part two lists those proposals to be amended or added by motion. I will come back to this a little later.
Regarding the proposals to be withdrawn, three reasons for withdrawing the proposed amendment are given in the column on the right, one being that the amendment has already been made by provisions in other pieces of legislation.
This is true, for instance, of clause 15, by virtue of the tabling of Bill C-67, of clause 17, which would have amended a provision of the Bank Act, and of clauses 34, 69, 114, 123, 158 and 236. A number of other provisions will also be withdrawn because the client-departments have so requested it. This is true of clauses 26 through 32, proposed amendments to the Boards of Trade Act. Also to be withdrawn are clauses 46 to 49, amendments to the Canadian Environmental Assessment Act, along with clause 192 which amended the Plant Breeders' Rights Act.
Also listed among the proposals to be withdrawn on page 2 are clauses 270 and 271 which are conditional amendments. We are asking that these be withdrawn because the condition on which the amendments were based has already taken place.
In the case of clause 270, the amendment was conditional upon the coming into force of a particular section of the act. This section is indeed now in force. In the case of clause 271, the amendment was also conditional upon Bill C-20 receiving royal assent and the coming into force of certain sections of the legislation. This bill did receive royal assent on March 11, 1999 and the provisions in question came into force on March 18, 1999.
We are proposing that these two conditional amendments be withdrawn,. However, the changes that have been made will need to be incorporated into the legislation itself. This brings me to the purpose of the motions that we have distributed. We are presenting these in the form of motions, but in reality, they are amendments already contained in the bill, albeit in the form of conditional amendments. We are suggesting that they be incorporated into the body of the legislation.
These proposals would amend clauses 56, 57 and 58 respecting the Competition Act and clause 267(a), an amendment to the Corporations and Labour Unions Returns Act.
Clause 272.1 is a new conditional amendment that we are proposing to add by motion. The reason given is that Bill C-67 has been brought in since we first tabled our proposals and that this it would renumber paragraph 559(g) of the Bank Act, which is already amended by clause 18. The conditional amendment would replace the reference to paragraph 668(g).
We are also proposing that four other clauses not listed in the letter also be withdrawn, specifically clauses 262 and 263, amendments to the Public Utilities Income Tax Transfer Act.
[English]
The Chairman: Madame Rodrigue, do you have a copy of that written down? Perhaps we could have that. We have the others in front of us to look at, but perhaps we could have the new ones that were not included in this letter.
Ms Rodrigue: I am sorry. I did not prepare anything, but perhaps I could write it down and give it to you tomorrow.
The Chairman: Certainly.
[Translation]
Ms Rodrigue: The provisions in question are clauses 262 and 263 which amend the Public Utilities Income Tax Transfer Act. We are proposing to withdraw these two clauses because the legislation was repealed on March 31, 1999.
Clauses 268 and 269 were also conditional amendments contingent upon the coming into force of our proposals prior to the coming into force of a section of the Firearms Act. This particular section in fact came into force on October 1, 1998, thereby rendering these two conditional amendments unnecessary. Therefore, we are recommending that they be withdrawn at this stage. If there are no questions, I will turn the floor over to my colleague Vincent Kooiman who will explain part two of the proposals to you.
[English]
The Chairman: Yes, at this point it would perhaps be better to continue with Mr. Kooiman. I find it difficult to ask you questions when I do not have the new ones before me.
Ms Rodrigue: I am sorry.
Mr. Vincent Kooiman, Legislative Counsel, Legislative Section: Madam Chair and honourable senators, the second part of the proposals for amendment has a very different character than the first part. The first part contains amendments to various acts -- amendments in the full sense of the word. They are not meant to be controversial, and in some cases they may not be extremely important, but they do amend the substance of the law. The second part, however, plays a completely different role. It is the very last instalment of the statute revision process.
This last instalment arose because the Income Tax Act was revised several years after the main body of the revised statutes. In the revision work, not only references within an act to other provisions were corrected or brought up to date, but also references to other acts, such as, for example, a reference to the Shipping Act in the Financial Administration Act. We had to check throughout all the statutes to see whether those references were still correct, there having been 20 years, perhaps, between revisions. Corrections were made where necessary, but all references to the Income Tax Act, which was not revised at the same time as the other acts, had to be left the way they were. In other words, they were all references to the pre-revision Income Tax Act.
The government more or less agreed with income tax preparers that the Income Tax Act would be revised later and also that the basic numbering of the Income Tax Act would not be changed. In the Income Tax Act, many sections are subdivided into an ungainly number of subsections. It was agreed that the numbering would basically remain unchanged.
However, in the Income Tax Act there are extremely long lists of definitions. They used to be paragraphed. In all other acts, since the revision of 1952, a new system has been used. In each act, the definitions are in alphabetical order and in the marginal note there is a reference to the counterpart language. As a result of that, all those definitions would have a different reference. Rather than being paragraph 10(2)(c), it would be only subsection 10(2). Within that they would be found in alphabetical order.
Some of those cases you will find in these few sections of Part II. Part II contains references to the Income Tax Act in other acts.
In addition to some changes in numbering, there are also minor changes in terminology. In the English version of the Income Tax Act there are very few changes. We tried to revise as little as possible because it is already complicated enough.
However, as you may know from other legislative activities, the French text of all statutes was changed in very many cases and, we all hope, improved in the 1985 revision. A number of technical terms in the French version of the Income Tax Act had to be changed, either to conform to changes that had been made in the main revisions of the other act or because the subject itself was not properly represented in French.
Therefore, there are a certain number of changes to provisions in other acts that refer to the Income Tax Act where the words used had to be brought into conformance with the terminology of the Income Tax Act.
My colleague Ms Andrée Dionne will continue on that point.
[Translation]
Ms Andrée Dionne, Senior Counsel, Legislative Section, Department of Justice: I just want to comment further on three amendments to the Income Tax Act which affected other federal laws. Of course, there have been additional amendments, but few have had an impact on other federal statutes.
Among the changes proposed is replacing the expression "organismes de charité" by "organismes de bienfaisance" in the French version. Clause 265 contains a long list of statutes affected by this change. Clause 266 also contains a long list of statutes in which the word "corporation" would be replaced by "société". Lastly, clause 267 makes provision for substituting the word "exercice" for "exercice financier" in various statutes, for the sake of consistency. These are the most recent changes proposed.
While the changes are found in the body of the text, it was somewhat more difficult to draw up an exact list of these amendments. Part two largely focuses on changes to the wording used in statutes.
[English]
The Chairman: The definitions of "charity" and "non-profit organization" changed as well, not only "fiscal period".
Ms Dionne: That was "charitable organization". It is just a change of words.
[Translation]
Senator Beaudoin: I have a question first. Why, when legislation or a particular legislative provision is declared unconstitutional, does it remain on the federal books or in the Criminal Code?
[English]
It is a mystery to me why abortion, for example, which was declared ultra vires because of the Charter of Rights and Freedoms of 1982, is still in our law books. If a section of a statute is declared unconstitutional, I think it should be out. The law of the land is that this disposition, this section or this crime should no longer be in the Criminal Code. It is certainly not because it is controversial. When the Supreme Court rules on a statute, it is the supreme law of the land. Could you explain that to me?
Mr. Macpherson: If I may, Senator Beaudoin, I will not explain to you that when the Supreme Court strikes down a provision, it is no longer part of the law. Once it is struck down, it is not part of the law.
You are focusing on those bits of law that have been set aside or struck down by the Supreme Court but that have not been repealed or cleaned up in a process such as the Miscellaneous Statute Law Amendment Program or perhaps in omnibus bills to amend the Criminal Code.
Senator Beaudoin: Yes.
Mr. Macpherson: Section 237 on abortion is in the Criminal Code. I gather that you are indicating that that is not an accurate picture of the law and asking why the Minister of Justice has not done something about that.
I will not answer for the Minister of Justice, but I will indicate to you that the criteria of the Miscellaneous Statute Law Amendment Program permit the repeal of spent legislation. In this particular package, on the last page of the proposals, we repeal good old nuggets like the Petroleum Incentives Program Act. That act was spent, perhaps from an Albertan perspective, as soon as it was enacted. We have not got around to taking it off the books until now. The same goes for the Home Insulation Program Act and the Canadian Exploration Incentive Program Act. Those provisions came to us as MSLA proposals from various departments and agencies.
Senator Beaudoin: What is MSLA?
Mr. Macpherson: It stands for Miscellaneous Statute Law Amendment.
Senator Beaudoin: It appears only in one column in English. Do you have that MSLA document here? It says that the MSLA proposal should be amended. In French, it reads:
[Translation]
[...] que les propositions soient modifiées.
Ms Rodrigue: At this stage, these are still only proposals. Once we have formally tabled this bill, it will become the proposed Miscellaneous Statute Law Amendments. I believe the official title will be the Miscellaneous Statute Law Amendments, 1998.
[English]
Senator Beaudoin: Do I understand that they are still on the books, in the statutes, because they have not been expressly repealed? Is that the reason?
Mr. Macpherson: That is correct.
Senator Beaudoin: I used the abortion statute as an example just because it came to my mind. It could be the freedom of expression statute or anything else. With 360 decisions from the Supreme Court, we have choices. Many sections were declared invalid but they do not die. It is strange. They are still on the books for 10 years or 20 years or perhaps a century.
Mr. Macpherson: Senator Beaudoin, a proposal submitted by you to repeal some of those provisions under the Miscellaneous Statute Law Amendment Program or the "loi corrective" would be received by the Minister of Justice. The provision could be repealed to the extent that the proposal is not controversial and to the extent that it is a repeal that should take place without full debate in the House of Commons or in the Senate.
The MSLA procedure is extraordinary in that there is pre-study by committee. Any proposal accepted by the committees is transformed into bill form, introduced as a bill, read three times in each house and passed without debate.
Had I received from you a proposal to repeal section 237 of the Criminal Code in the MSLA Program, I would have had great difficulty finding that that proposal met the program criteria, notwithstanding that that section has been effectively repealed by the Supreme Court.
Senator Beaudoin: How can you say that it may still be controversial?
Mr. Macpherson: Repealing section 237 from the Criminal Code is a controversial idea that, in my judgment, should be debated in Parliament. Perhaps the idea that the section is spent is not controversial. However, with what might we replace it? Should that question be debated in Parliament or could it slide through the MSLA Program so that the repeal operated immediately?
Another case struck down by the Supreme Court involves spreading false news. I think it is section 231. That section was used in the Zundel prosecutions. Although the Supreme Court has declared that that section is not the law of Canada and is unconstitutional, a proposal to remove that section from the Criminal Code might be regarded as too controversial to go via the MSLA route.
Another example is the constructive murder section. That was struck down by Vaillancourt. How would we repeal the murder provisions? What would be repealed? Certainly those are matters of controversy.
I am suggesting that the MSLA might not be the appropriate route for matters that seem to be controversial because the court has struck down legislation enacted by Parliament. Perhaps another route, like Criminal Code amendments or an omnibus amendment bill, may be a more appropriate route. We would certainly look at any proposals that are submitted.
Senator Beaudoin: What about the death penalty? That was abolished in 1976. I do not pretend that it is still in the laws.
Mr. Macpherson: It was recently abolished even in military law, I understand, by the courts, but I doubt that the provision is yet repealed.
Senator Beaudoin: Is it still there?
Mr. Macpherson: I am not certain. It is not in the Criminal Code but it may still exist in the DND service code. It may be written there although it is as good as repealed.
Senator Beaudoin: I do not understand the reasoning behind that. You say that if it is controversial, it will stay. How can it be controversial? If the death penalty is abolished, it is abolished.
Mr. Macpherson: Minister Lang commented on that in his speech saying that if one party objected to the repeal, it would then become controversial. I can imagine that there might be one party that would object to the repeal of the abortion provision.
Senator Beaudoin: Of course. I know that.
Mr. Macpherson: In that case, the criteria would not be appropriate for the MSLA Program. It could perhaps be introduced as a Criminal Code amendment and be open to full debate in Parliament.
Senator Beaudoin: Yes, but our system says that if the Supreme Court says that it is illegal, then it is illegal. It is unconstitutional.
The Chairman: Mr. Macpherson has given us the answer. Under this particular directive, if one party decides that an issue is controversial then it is too controversial to follow under this plan.
Senator Beaudoin: That does not make sense. If you do not like the decision of the Supreme Court, then you may ask Parliament to legislate again. You would lose again, but there is no end to that. It is controversial because someone said that it was controversial.
Senator Pearson: I think the witness said that it is only for the purposes of this particular process that it would not have been entertained. You have raised an absolutely fascinating question. I think that a law student doing a master's degree could take up the idea and go through the Criminal Code to see how many laws are left in it that have been struck down by the Supreme Court. As you know from some of our debates in the Senate, there is always a question about who makes the law in this country: the Supreme Court of Canada or Parliament? We shall not add that to your burden, but the issue is fascinating. I should love to know the answer.
Senator Beaudoin: I conclude that it is still a mystery.
The Chairman: Today we are dealing with the fast-track process.
Senator Pearson: I think that it is an interesting and tidy process. I understand that they have the criteria that it should not be controversial so that it can be gone through as quickly as possible. They will also tell us about a few that might potentially be controversial. The other question I find extremely interesting.
The Chairman: It would be interesting to see a run-down of the list. I imagine that it would be quite a long list.
Senator Pearson: There is the Tobacco Act, which we had to amend. Is that amendment in here?
To clarify, when we amend an act because a section of it has been struck down, we eliminate the existing act and replace it. We are talking about things that have arisen for one reason or another over time, but that no one picked up when the bills were studied.
The Chairman: Yes, or perhaps other acts that referred to the original one.
Senator Pearson: I assume that usually the acts states, "This act is to amend act X, Y or Z and other acts." That is all done. What we have here has not been done; is that correct?
Mr. Macpherson: These are the errors. The long title of the proposed act is, in part, Proposals to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature. I am sorry to disappoint the committee, but from the high ground on which Senator Beaudoin has begun, we will get down to spelling mistakes, inconsistencies between the English and French versions, and mistaken cross-references. It involves amendments of a housekeeping nature that are expedited. Only the most meticulous law student would be interested in the Miscellaneous Statute Law Amendment amendments as now constituted. Perhaps Senator Beaudoin will breathe new life into them for a future exercise.
Senator Pearson: They are extremely important because they could be used. Clearly, it is a bit like the scrutiny of regulations in that it does come to Parliament.
Senator Beaudoin: Yes.
Senator Pearson: The fact is that it is not being done just by departments; it comes to us.
Senator Beaudoin: In other words, if a crime is punishable by five years in English and two years in French, then you correct that type of mistake.
Senator Pearson: Hopefully, such a gross error would have been picked up earlier.
Senator Beaudoin: If you do not correct that, I suppose that the court would choose the lesser punishment.
The Chairman: In the letter that we have before us, Mr. Macpherson has identified three areas about which we might have some concerns. They are the Copyright Act, the Federal Real Property Act and the National Energy Board Act.
I propose that we now have before us Mr. Michael Richard, Senior General Counsel, Property Law Section. Ms Dionne and Mr. Kooiman, you may retire from the arena at this time.
[Translation]
Ms Rodrigue: I have been informed that I referred to clauses 26 to 32 as being withdrawn, rather than clauses 29 to 32. I'd just like to correct that. The clauses in question are indeed clauses 29 to 32.
[English]
The Chairman: Thank you for being specific.
Mr. Richard, would you join us, please?
Mr. Michael Richard, Senior General Counsel, Property Law Section, Department of Justice: If it is acceptable to you, I wish to refer to the specific provisions in the Federal Real Property Act that proposed amendments would affect. I will try to give you some background as to why those amendments are being requested and then answer any questions that you might have.
The first paragraph of the Federal Real Property Act is paragraph 16(1)(j). It is proposed that it be amended by subclause 108(1) of the Miscellaneous Statute Law Amendment Act.
Senator Bryden: Can you tell us what document you are working from and where we are in this list?
Mr. Richard: I am looking at a portion of the proposed bill, clause 108.
Senator Bryden: What page is that?
Mr. Richard: It is page 36a. That proposed amendment does two things. First, it adds the word "utility", which is underlined, to the paragraph. That is being done basically because the words "road, utility, park and other purposes" were used elsewhere in the act but, inadvertently, that word was not used in the act when it was initially passed. Second, the amendment removes the reference to the ability of the Governor in Council to revoke a dedication for highway purposes. Perhaps I could explain why there is such a provision in the Federal Real Property Act.
The Chairman: Where is that found?
Mr. Richard: That is found in clause 108. The current wording of paragraph 16(1)(j) of the Federal Real Property Act, which you will see in the explanatory note, states:
dedicate or authorize the dedication, for so long as the dedication or authorization remains unrevoked...
It is proposed that those words be removed.
Senator Bryden: Where is that found?
Mr. Richard: It is on page 36(a). Look at the explanation for clause 108. That gives the current provision in the act and it contains the words "dedicate or authorize the dedication, for so long as the dedication or authorization remains unrevoked."
The provision in the Federal Real Property Act to allow lands to be dedicated for certain public purposes, such as roads or utilities, was used as another means for the federal government to transfer real property. Prior to the Federal Real Property Act, we had no means of using provincial legislation, for example, to allow ourselves to dedicate and in effect give to a province or municipality lands to be used for certain public purposes. Most provinces have acts which enable property owners, by signing a subdivision plan or a plan of survey, to dedicate, in effect, lands shown on those plans for public purposes, such as a highway, a utility easement, a park or other general public purposes.
The federal government wanted the same ability that the private sector has to use survey plans to transfer title to its property to municipalities or provinces. When the federal Crown subdivides its property and wishes to sell off lots, it is very advantageous to have a plan that transfers title to roads and utilities that will service those parcels of land. Thus, we included in the Federal Real Property Act a provision to allow for that to take place. However, because we envisaged that it would be done by way of an Order in Council, we included a provision saying that the dedication of those lands for public purposes would last only as long as the dedication by the Governor in Council was unrevoked. Subsequently, we found out that such a provision causes problems.
B.C.'s land titles legislation provides that if you intend to use a plan of survey to grant lands to the province for a public highway, then it has to be a complete transfer. It cannot be revoked. There cannot be any conditions. The difficulty created inadvertently by this wording means that we have precluded ourselves from using some of the very provisions in provincial legislation that we wanted to use.
If there is a concern, for example, that somehow a province or municipality will not comply with the federal government's requirements for the transfer of lands for a road or utility purpose, then there are other legal means to effect that. We could use a deed with conditions that would ensure that the province or the municipality did not deal with the lands in a fashion inconsistent with our intention.
It is a fairly technical provision. There were two main rationales for the amendments. First, utility was inadvertently left out of the category of so-called public lands. Second, we wanted to remove the provision that the Order in Council could be revoked, which would have the unintended result of having the lands vest back in Canada.
Similarly, we were addressing in particular subsection 16(2) in the regulation-making section of the Federal Real Property Act, and there is a whole series of powers to make regulations. At the time of the enactment of the act, we did not include a regulation-making power in relation to authorizing a minister, for example, to dedicate lands for a public purpose. The Federal Real Property Act as it currently reads requires an Order in Council to authorize the dedication. The act has been in operation for about eight years, and it has been determined that it would be desirable to have a regulation-making power to authorize the making of a regulation to allow ministers themselves, rather than the cabinet, to dedicate lands for a road or utility purpose. Subclause 108(2) of the MSLA would make that amendment. Proposed paragraph 108(2)(l) reads:
respecting the dedication, in perpetuity or for a lesser term, of any federal real property for a road or utility purpose.
In this case, it was felt that the ability to authorize the dedication would be restricted to roads or utility purposes. Ministers would not be given the authority to dedicate lands for public parks or for other public purposes. That is a new provision.
Subclause 108(3) is a provision that allows a minister to authorize another minister. Typically, it would be a minister having control of property who would authorize, for example, the Minister of Public Works and Government Services to act on his or her behalf in completing a transaction to dispose of some federal real property. Subsection 16(3) of the Federal Real Property Act makes reference to a minister authorizing another minister to exercise his power in relation to any transaction. It does not refer to any class of transactions. That terminology is used elsewhere in the Federal Real Property Act. That has caused a technical problem because the words "class of transaction" are used elsewhere in the act.
This provision has been interpreted not to allow a minister to authorize the Minister of Public Works, for example, to handle a whole series or class of transactions for that minister. For example, the Minister of Canadian Heritage might want to authorize the Minister of Public Works and Government Services to handle any dispositions of real property held by the Minister of Canadian Heritage of a value up to $100,000. That would be a very straightforward administrative way of doing it. However, it cannot be done because of the current wording. The result is that each time a minister wants to authorize another minister to carry out their powers under the Federal Real Property Act, they have to give the specifics of the transaction. The current section has created an administrative burden.
Senator Pearson: Is this just streamlining?
Mr. Richard: Yes, it is.
Senator Pearson: I am all for that.
The Chairman: To a certain extent.
Senator Pearson: Yes, I should qualify that.
The Chairman: How burdensome is it for ministers to have to be specific about the transaction that they hand over other ministers?
Mr. Richard: It is fairly burdensome. The difficulty is that each time that they are involved with a transaction they have to generate another document. The intention was that ministers would be able to delegate wide powers to other ministers for a whole series or class of transaction. In fact, that is what we thought we had captured by the wording but, in fact, we had not. It has created a fair amount of additional work for public servants and for ministers who have to sign those documents.
The Chairman: Are you saying, then, that this new wording would, in effect, be the intent of the original wording?
Mr. Richard: Yes.
Senator Beaudoin: Sometimes I see that only the French or the English wording is changed. What we have here seems, prima facie, to be very different. I will give you an example. On page 42a, subsection 44(b) in French states:
[Translation]
b) conférer au ministre ou à son délégué le pouvoir [...]
[English]
Then there are six points, and the French version seems to be a little different from the English version. Is that right?
[Translation]
Ms Rodrigue: This is one of the clauses that we are withdrawing.
Senator Beaudoin: Really?
Ms Rodrigue: Yes. Clause 123 which amends section 44 of the French version of the Financial Administration Act is being withdrawn because a provision of Bill C-71, the Budget Implementation Act, amends this section. With the subsequent tabling of Bill C-71, we have withdrawn our proposal.
Senator Beaudoin: Then you are not withdrawing it because of the rather unusual wording?
[English]
The Chairman: It is on our list of clauses that have been withdrawn. That solves that problem.
Mr. Richard, please continue with the next section.
Mr. Richard: Next is clause 109 of the MSLA. It proposes a new subsection 5.1 to section 18 of the Federal Real Property Act. As the marginal note indicates, this proposed amendment would deem a minister to have administration of federal real property in certain instances where the minister is satisfied that he or she has administration. It would help to simplify the determination of which minister has administration of federal real property. Most important, it would protect the property rights of anyone who acquired property from the federal government by ensuring that when a minister signed the document, that minister was deemed to have administration of the federal real property.
Perhaps I can give you some background as to the concept of administration so you will be better placed to understand why this amendment is being proposed.
The concept of property ownership is somewhat different in relation to the federal government than it is in relation to the private sector. Her Majesty in Right of Canada essentially owns what we call federal real property. Individual ministers have what is referred to as administration of the property. They do not have title to it. They administer it and they have administrative responsibility for federal real property.
The Federal Real Property Act created a regime that gave ministers and their officials broad powers in relation to lands they administer for program purposes. The concept of administration is found throughout the act. The minister has administration of real property.
Let us say that the Minister of Transport has administration of airports. If the federal government wishes to dispose of airport lands, the Minister of Transport, having administration of those lands, must sign the deed or the transfer document, in addition to a representative of the Minister of Justice.
The legislative scheme makes it very important to determine which minister legally has control of the property and has administration, as that term is defined in the act.
That concept is very different from what existed prior to the Federal Real Property Act when most dispositions and most dealings with federal real property had been authorized by cabinet by way of an Order in Council. The Federal Real Property Act envisaged that it would not be necessary for cabinet normally to be involved in giving authority to deal with routine dispositions and also with acquisitions of property for the Crown. It gave powers to ministers to do that by virtue of the regulations.
A difficulty has been created. In times past, the government's record system was less rigorous than it is now. Lands were acquired decades ago by departments for the purposes of a department that no longer exists. Departments were amalgamated, de-amalgamated and merged. It is now sometimes very difficult to determine by looking at government records which minister in fact has administration of the federal real property. The objective of this amendment essentially is to simplify the research that is required to be conducted by departments, and also by the Department of Justice, in determining which minister has administration or control of real property.
The Chairman: Are you saying that if something had originally come under the administration of the Minister of Indian Affairs and Northern Development in the 1970s, at this point, if the minister of that department deemed it was his responsibility, he would, in effect, have legal responsibility?
Mr. Richard: Given the recent changes in the structuring of departments, there is no difficulty with cases like that. The difficulty has been that a great deal of our land was acquired a century ago. It is very difficult to determine from the records which minister acquired the property for the purposes of his or her department.
When the organizational acts of the departments were changed recently to reorganize the departments, the changes normally dealt with issues such as administration of real property. The problem is created primarily in relation to properties that the Crown acquired many decades ago where it is difficult to follow through from the initial acquisition to the current day to determine which minister really has administration.
The concept was that we would allow ministers, upon making reasonable inquiries, to satisfy themselves that the property was under their use and that they actually had administration of the property.
One important result of this provision is the following. In clause 109, the proposed new subsection 5.1 indicates that when the minister has signed a conveyancing document -- one of the instruments referred to in the subsection -- that is conclusive evidence that the minister is satisfied that he or she has administration. That really protects the property rights of anyone who acquires property from the federal Crown.
We do not want to imperil the title in the event that the wrong minister signs a deed or transfer. We do our utmost, both the department in question and the Department of Justice, to make sure that the right minister signs the document. However, in the event that the proper minister does not sign the document, we do not feel that we should prejudice any third party who has acquired the property from the federal Crown.
The Chairman: Are there any questions?
I believe you have done your duty, sir.
Mr. Richard: Thank you for your time.
The Chairman: Our next presenter is Mr. Jeff Richstone. Mr. Richstone, please direct us to the pages to which we should refer.
Mr. Jeff Richstone, Senior Counsel (Canadian Heritage), Department of Justice: You should be referring to pages 25 and 25a of the proposal from the Minister of Justice.
Honourable senators, I take to heart Mr. Macpherson's use of the word "uncomplicated". Whenever one talks about copyright -- and I look particularly at the chair because I had to talk about copyright to the chair a while ago in reference to another bill -- it is anything but uncomplicated. The more the committee got into the matter the more complicated it became. I hope that that is a caution not to go too deeply into this matter. We shall see how far we shall get.
The first provision we are talking about is clause 71, and it refers to an exception dealing with the management and maintenance of archival, library and museum collections. That exception was brought into the Copyright Act by virtue of Bill C-32, the 1997 amendments to the Copyright Act. The opening lines described generally the kinds of activities that would be non-infringing for the library, archive and museum communities.
The problem here is an inconsistency between the English and French versions of the statute. A reference appears in English that is not found in the French version. The amendment in clause 71 would delete from the English version the words "in accordance with the regulations made under subsection (4)".
The Chairman: Where are we?
Mr. Richstone: We are on page 25a. Under clause 71, in the fine print, it says in English:
The relevant portion of subsection 30.1(1) reads as follows:
...in accordance with the regulations made under subsection (4)...
That reference does not appear on the French side. There is a clear case of inconsistency.
Our argument is that, in terms of the legislative intent and the overall structure of the act, the French version is preferable to the English version for a number of reasons. Note first that the words "in accordance with the regulations made" are ambiguous. They do not indicate clearly whether or not there are regulations. That phrase can be read as "there must be regulations" or it can be read as "if there are regulations, in accordance with those regulations."
The French version preferred not to put those words in because, I submit, the legislative intent was to make those regulations and the regulation-making power purely permissive. Again, in terms of the actual regulation-making power of the section, subsection (4) is worded in a purely permissive way. The Governor in Council may make regulations with respect to the procedure for making copies.
The only regulation-making power we are talking about here is not substantive, it is purely procedural. If there are procedures, they may make regulations. That was the intent. We created an exception from infringement of copyright for the library, museum and archival communities who wanted that very badly in order to maintain and manage their collections. If there were any procedures that needed to be prescribed, they would be described under a permissive regulation-making power. It is the same on the French side.
[Translation]
Le gouverneur général peut par règlement [...]
[English]
There is nothing mandatory about it. I say that the legislative intent clearly is to be permissive because there is a clear contrast between the wording of subsection 4 and those words in subsection 30.1(1) of the English side and other provisions of the act where clearly the intent is to make it obligatory. There are many sections like that. I will point to just one because it is in the same community of provisions dealing with the libraries, archives and museums.
In the Copyright Act, above subsection 30.1(1), you find the heading "libraries, archives and museums". If there is another provision in the set of exceptions dealing with libraries, archives and museums that clearly makes a regulation-making power mandatory rather than permissive, it is subsection 30.3(1). That is in the same basket, if you like, of exceptions dealing with libraries, archives and museums. I bring that up because it is the most relevant example and there are a number of those kinds of provisions.
There is another non-infringement section. Paragraph 30.3(1)(c) of the Copyright Act says that an educational institution, library, archive or museum does not infringe copyright where there is affixed, in the prescribed manner and location, a notice warning of infringement of the copyright.
That is a clear legislative intent and pointer that you cannot have that exception. That exception cannot take place unless there is a notice in the prescribed manner and location. Of course, at the end of that section, subsection 30.3(5) contains a regulation-making power. It says that the Governor in Council may, for the purpose of paragraph 30.3(1)(c), prescribe a regulation.
There are other instances; however, I brought that to the attention of the committee because it deals clearly with the same basket of exceptions for the library, archive and museum community in one section, in both English and French. Perhaps you can look at 30.3(1)(c) in the French side. Again, you see it is quite clear.
[Translation]
L'avertissement réglementaire a été affiché selon les modalités réglementaires.
[English]
It is quite clear in that provision in both English and French that that must be mandatory.
The clause that this committee is to pay attention to does not have that kind of legislative intent or that legislative pointer. A major reason that I believe that the legislative intent is clear is that where regulations were to be mandatory, Parliament said so. The committees that studied the bill were quite well aware of that because it was pointed out to them.
If you consider the whole of section 30.1, you see that following the word "collection" on line 19, in both the English and the French, there are seven paragraphs. There are seven different instances where libraries, archives and museums may make copies, including, for example, if the original is rare and published, for the purposes of internal record keeping and cataloguing, for insurance purposes and, if necessary, for a restoration. All of those are disjunctive. They are specific acts that libraries, archives and museum may take in terms of reproduction of their own collections.
If you read the regulation-making power as mandatory, I submit that it would result in an absurdity. What would it mean? Would you need to make a separate regulation for each one of the seven instances? Note the word "or" at the end of the sixth paragraph. It is disjunctive. If you read this as mandatory, if you made a regulation for one, would that mean that the rest could not be used by the museum, archive and library community in the absence of a regulation? That would result in at least an anomaly, if not an absurdity.
It seems to me that in terms of both the intent, since there are many instances where regulations are prescribed clearly, and the overall structure of the act and of the section, reading the regulation-making power as mandatory would result in an anomaly and an absurdity, because you could not capture it.
The regulation-making power, I would point out, is purely procedural. It does not affect rights. The rights that are affected have been effected by Parliament in that section itself. This is a purely procedural provision.
Given that and given that the words in the English section are clearly ambiguous at best, in the interests of clarity and to assist the library, archiving and museum community, it was proposed that those words be taken out of the English version.
The Chairman: If there are no questions, perhaps we can go to clause 72. I am concerned about adding the words "at the time the work is deposited". Is that to make certain that no one can come back retroactively and prevent photocopying?
Mr. Richstone: Yes, that is the provision. In this case, too, there is an inconsistency between the English and French texts.
On page 25a, the words in the French text are: "au moment où il déposait l'oeuvre". We are not putting words into both language versions. Those words were there in the French version. In this case, the words are not in the English version. It is proposed to add those words to the English version. We have a case where words are in one version but not the other. People will wonder why. If one looks at the architecture of the section, it is clear that the words were meant to be there.
I will start at the beginning of section 30.21. That will help the committee to understand the raison d'être of this provision. It was added in parliamentary committee in the other place at second reading. It was not a first reading provision. It was brought in at second reading because a number of concerns had been voiced by people in the archival community. Historians and genealogists wanted to make copies of letters of parents or members of a family, and they could not get copyright permission. In many cases the parties had died, but the letters or ledgers were not in the public domain. It was difficult to get permissions, and people wanted to do their own genealogy. They wanted to do their own histories or histories of Canada. Therefore, that provision was brought in by the committee in the other place to respond to those concerns.
In order to understand the reason for this amendment, subsection (1) of 30.21 sets out the exception. It is an exception for an archive, and only for an archive, to make a copy in accordance with subsection (3) of an unpublished work that is deposited in the archive after the coming into force of this section. We are dealing with archival deposits, and this provision is meant to respond to those concerns. That is the opening of subsection 30.21(1).
Subsection (2) states that where a person makes a deposit in an archive, the archive must give the person notice that it may copy the work in accordance with this section.
The architecture of this section was as follows. First, we set out the non-infringement provision. Then we say how this non- infringement provision is to work. The first step is that the archive, upon receiving the donation or the collection that the depositor wants to deposit, must inform the depositor right away as notice that it may copy the work in accordance with those sections.
Why would we put those words in this provision? The answer is that the notion of a notice makes sense if the archive tells the depositor at the beginning that there may be a copying provision. That is why, at the time of depositing the work, the copy may or may not take place. At that time, the notice is given. You would not need to give a notice if the depositor could at any time raise objections. You need to give a notice to the depositor because the depositor should be put on notice that there may be copying if the depositor so agrees. That provision clearly sets out the reason for the notice.
Subsection (3), which is where we propose to make the provision, should be read as a whole. Those are the conditions for copying the work. If you are in paragraph (a), you are the depositor. Paragraph 30.21(3)(a) now states:
the person who deposited the work, if a copyright owner, does not prohibit copying.
We propose adding the words "at the time the work is deposited".
I would now direct your attention to paragraph (b) which, in essence, states that copying has not been prohibited by any other owner of copyright in the work. If I deposit a collection with the archive, it may be not only my copyright but other people's copyright as well. For example, it may be my letters or copies of my letters. I hold copyright to my letters, but the people who write letters to me continue to hold copyright in them. That is clearly the law and it has been the law for hundreds of years. When a famous senator deposits his or her collection with the archive, the senator will not have copyright in each item in the collection. However, it is of great archival interest and historical and genealogical interest to a number of people. The depositor cannot certify that the depositor holds copyright to all of that.
Parliament and the government had to respect the rights of other copyright owners who may object to the fact that people are copying their works without their permission. Remember, we are talking only about unpublished works, such as letters and memoranda.
In both the English and the French side of paragraph (b), there is no restriction on time of notice. The copyright owner, not the depositor, may object at any time. It is the contrast between the two that reveals the parliamentary intent.
It makes sense for the depositor to object at the time of deposit because there is a contract of deposit. At the time of the contract of deposit, the depositor will say whether he or she objects. However, another copyright owner will not know that this material is being deposited and may find out later, perhaps through the press.
The Chairman: Do you mean you have deposited my love letters?
Mr. Richstone: That is right. They will have the chance to prohibit it at any future time. That is why paragraph (b) is not time restrictive or time specific.
I look at the members of the committee who heard me discuss the Berne Convention rights. The copyright owners have the right to object. They were not there at the time of deposit. They could not make their objections at the time, so they have the right to do it there.
The parliamentary intent is clear in the French version because you have "au moment où il déposait l'oeuvre". The contrast between (a) and (b) on the French side is clear. The contrast between (a) and (b) on the English side is not as clear, and it does not reflect that intent. It makes sense only when you look at subsection (2) and paragraphs (a) and (b) together.
As a final point, this was all done to respond to the very strong concerns of the archival community and the genealogists and historians of Canada who wanted to do research, but it was also meant to reflect archival practice. What I am saying to the committee is nothing other than what archives do right now. When someone wants to deposit a work, it is not done without a contract. Some kind of contract is drafted. I have drafted on behalf of the National Archives many such contracts that set out the form to be deposited, the conditions to be attached and when that collection is to be revealed. That is how archival practice works, and that is why the time restriction makes sense in this case. It is meant to reflect that kind of practice in the community.
Clause 73 deals with subsection 72(1) of the Copyright Act regarding publication of proposed tariffs. Again, we are on page 25a. The purpose of the amendment is to delete, from both the English and the French versions, a reference to persons with perceptual disabilities. The subsection should not apply to persons with perceptual disabilities because they do not have to pay the royalties covered by the proposed tariff.
In order to understand subsection 72(1), you must read section 32, the substantive section that is a specific exception made for persons with perceptual disabilities.
This change was made between first reading and second reading, and it is very clear if you look at the first-reading provision of section 32. The Department of Justice thanks the Library of Parliament for making a first-reading version available.
In the first version of section 32, which provided for an infringement of copyright, subsection (5) stated that it was not an infringement of copyright for a person to make more than one copy or sound recording for a person or on behalf of a person with perceptual disabilities, if the person had paid the royalties and had complied with any terms and conditions fixed under the statute.
That subsection (5) created an exemption for persons with perceptual disabilities and people working for them in terms of making copies in alternate formats, but it was not a pure exception, a royalty-free exception. It was what they call a compulsory licence. Subsection (5), as it read in first reading, said that such copies would still be an infringement of copyright unless a royalty were paid. However, the royalty is paid not on a one-to-one basis between the rights holder of a sound recording or a book that is being done in an alternate format, such as Braille. Rather, the royalty is paid under the terms of collective administration. That means that the several rights holders can entrust a certain right to a collective society. That collective society acts in the name of the rights holders and files tariffs with the Copyright Board.
It is an immensely long process. The collective files a tariff. The people who must pay the associated royalties appear before the Copyright Board and object to those royalties and tariffs. It is a kind of quasi-judicial process. At the end of the day, the tariff is published and certified. The royalties are paid under the tariff to the rights holder.
If that occurred, under subsection 32(5), as it stood at first reading, there would be no infringement of copyright. The exemption was conditional upon payments of royalties under a tariff. That was the essential structure. A number of provisions in the Copyright Act contain that structure right now. The Copyright Act sets up a number of what we call compulsory licences under which the rights holder must give a licence to people to copy or to broadcast the work, but that is not on a royalty-free basis; there is a tariff and the rights holder receives compensation. There is some kind of remuneration. That is how the subsection read at first reading.
At second reading, very strong representations were made to the committee in the other place by people with perceptual disabilities and by organizations working on their behalf. They said that they could not afford to pay royalties, especially given the charitable or non-commercial nature of the organizations and their work. The government then proposed and the committee and ultimately Parliament accepted to do away with the compulsory licence.
Section 32, as it stands now, contains three subsections. Subsection 32(1) was changed somewhat but it still sets out the exception for non-infringement of copyright in certain cases under paragraphs (a), (b) and (c). Subsection 32(2) excludes the making of large print books. Since there was already a market for that product, there was no need for such an exception. Subsection 32(3) provides a further limitation for products that are already commercially available. If a product is already commercially available in a format, there is no need to make copies and no reason to create an exception.
Aside from those two limitations, the exception is a royalty-free exception. There is no longer a reference to paying royalties or to complying with a tariff. However, other provisions still exist because there are still other compulsory licences.
Turn now to section 72 under the "Collective Administration" part of the Copyright Act. The key provision starts off in section 71 dealing with the royalties for collective administration. In both English and French, subsection 71(1) says that each collective society that carries on the business of collecting royalties referred to in the subsections -- and there are a number of subsections -- shall file with the board a proposed tariff.
At first reading, section 71 contained a reference to section 32 because a collective society scheme was envisioned then for this compulsory licence with respect to persons with perceptual disabilities. As you see it now, the reference to section 32 was removed.
We removed all of the references to section 32 that appeared in section 71 and the other sections -- the legislative history will bear that out -- but we forgot to remove the references to persons with perceptual disabilities. Those references still stand.
One noted authority on copyright referred to the ghost that lies in these provisions. The ghost is the references to persons with perceptual disabilities. As Mr. Macpherson would say, the references are spent. It is a different twist on the meaning of "spent", but the references do not exist any more.
We move now to section 72. We are talking about the publication of proposed tariffs. There are no more tariffs for rights holders with respect to persons with perceptual disabilities. Section 72 as it reads now says that the Copyright Board shall publish a tariff within 60 days and give notice of it to prospective retransmitters, educational institutions, persons with perceptual disabilities or their representatives. Those persons may file their objections to the tariff with the board.
That makes sense for those people where there is such a collective administration scheme. For retransmitters, we are talking about the cable companies, which, of course, have to pay royalties to the broadcasters. There are also new exceptions and new compulsory licenses for rights holders with respect to the copying done in educational institutions, and those institutions have to pay royalties. However, persons with perceptual disabilities do not have to pay royalties. No reference to them is necessary, because there is no more compulsory licence, no more collective rights scheme in relation to them. They need not make any objections.
The Library of Parliament raised the question that that would remove the right of those persons to file objections. First and foremost, the objection power or objection provision is clearly attracted to the person who must pay. Clearly, the person who must pay would file an objection or would at least have an interest in filing objections. Persons with perceptual disabilities would have no interest in filing objections because they do not have to pay.
However, if persons with perceptual disabilities wished to make representations before the board, they could do so as intervenors in any number of royalty schemes. The board accepts intervenors, and there is case law for that now. It is not clear to me why persons with perceptual disabilities would want to do that, because there are only two such schemes now, one for cable -- that is, retransmitters -- and one for educational institutions. While there is nothing in the statute that would deny them the right to come in, they would not have the status of objectors because they do not have the status of payers. That is the reason for the change. I have gone into it in some detail, because it is impenetrable otherwise.
Clause 74 does the same thing. That amendment would delete the reference in subsection 73(1) to persons with perceptual disabilities. Subparagraph 73(1)(a)(i) refers to royalties to be paid by...
any person making more than one copy or sound recording of a literary, musical or dramatic work in order to accommodate the needs of a person with a perceptual disability...
However, there are no royalties to be paid for that. There are no tariffs. Therefore, there is no need for the reference.
Senator Beaudoin: Under clause 74, subsection 73(1) has subparagraphs (i) and (ii) on the English side while the French version has no subparagraphs.
[Translation]
Can you chalk this up to the genius of the French language?
Mr. Richstone: Yes, the genius of the language comes into play. The French drafters do not like to divide and further subdivide paragraphs. They prefer to keep things together.
Senator Beaudoin: That is true.
Mr. Richstone: That is always the case. You can find this in the last part.
Senator Beaudoin: I have seen it stated this way at least four or five times.
Mr. Richstone: This is standard procedure. The French drafters prefer to keep everything together, whereas the English version often contains clauses, subclauses, paragraphs and so forth.
Senator Beaudoin: I do not have a problem with that.
[English]
Mr. Richstone: It is the same rationale.
Senator Beaudoin: It is exactly the same.
The Chairman: Thank you for your presentation, Mr. Richstone.
Mr. Richstone: Thank you, Madam Chair. It is a pleasure to be here, as always.
The Chairman: Mr. Noonan, please proceed.
Mr. Peter Noonan, Counsel, Legislative Matters, National Energy Board: Honourable senators, my purpose today is to speak to the proposed amendment to section 112 of the National Energy Board Act. That amendment appears in clause 182 on pages 62 and 62a.
At the outset, I wish to advise this committee that the National Energy Board is aware of the concerns expressed by the parliamentary officials regarding the suitability of this amendment for the Miscellaneous Statute Law Amendment Program. The board fully recognizes and appreciates that its proposal may be at the threshold of acceptability and that it is the role and function of the committee to decide whether this legislative proposal should be enacted.
The proposal for a miscellaneous statutory amendment has its genesis in a review of certain regulations by the Standing Joint Committee for the Scrutiny of Regulations. In 1988, the National Energy Board arranged for the enactment of two regulations, the Pipeline Crossing Regulations Parts I and II, to regulate more effectively the interface between pipelines and other land use activities.
The National Energy Board Act provides for the concepts of a right-of-way in which a pipeline is laid and a surrounding safety zone of 30 metres on either side of the statutory right-of-way. Within the 30-metre safety zone, no excavations may be performed without the permission of the pipeline company or, failing such permission, an authorization from the board.
Beyond the 30-metre safety zone, a temporary restricted area has been created by the regulations. That restricted area is intended to exist for a very short period of time -- essentially three days. It exists to permit a pipeline company to stake its pipes and right-of-way so that both the pipes and the safety zone can be accurately determined by any contractor or other person engaging in excavation activities in close proximity to a pipeline.
The need for such safety measures has not been questioned by the Standing Joint Committee for the Scrutiny of Regulations nor by anyone else. Pipelines are inherently dangerous and tragedies in relation to them do occur. As recently as April 1 of this year, a man excavating near a pipeline at Savannah, Alberta was killed when his bulldozer punctured a gas pipeline owned by Nova Gas Transmission Limited. The resulting explosion created a fire ball 30 metres in height, according to the witnesses to the explosion.
In its review of the relevant regulations, the standing joint committee took issue with the scope of the authority within the National Energy Board Act to enact regulations prescribing a restricted area. That issue was the source of much debate between the respective legal advisors of the committee and the board. Eventually, it was agreed that an amendment to the National Energy Board Act should be sought. After consultations between officials of the board and the Department of Natural Resources, it was determined that the Minister of Natural Resources, the Honourable Anne McLellan, was prepared to authorize a request for a miscellaneous amendment to the National Energy Board Act in order to satisfy the concerns of the standing joint committee.
At all relevant times, the intent of the National Energy Board has been to mitigate any issue concerning the validity of those regulations. The current regulations have been in force since 1988 and no question of their legal validity has been considered by a court of law.
I have also provided the clerk with a pamphlet called "Living and Working near Pipelines." I believe that both English and French versions have been provided. I wish to refer senators to the back page where there is a diagram that shows the situation that we are concerned with here. You will note that there are two pipes at varying depths within a pipeline right-of-way. On either side of that pipeline right-of-way is a safety zone of 30 metres.
The restricted area that is the subject of the amendment before you would encompass an area outside of both the right-of-way and the safety zone. That restricted area, however, will exist only for a temporary period of three days. The purpose is to allow the pipeline company to stake out the location of both the pipes and the right-of-way so that any contractor or landowner who is excavating in proximity will be able to determine where the right-of-way exists, where the pipes are, and where the 30-metre control zone is located.
In such a situation, the landowner deals with the pipeline company and obtains permission from the pipeline company to excavate or to do whatever work is required in accordance with the safety provisions that the pipeline company issues.
That is all I wanted to say in terms of opening remarks. I am certainly available to answer any questions that the committee may have at this time.
Senator Moore: Mr. Noonan, this came about as a result of a response to an opinion expressed by the Standing Joint Committee for the Scrutiny of Regulations. I happen to sit as a member of that committee currently. Does the committee know that you are going this route?
Mr. Noonan: Yes.
Senator Moore: Have you written to the current co-chairs to advise them of how this matter is being dealt with?
Mr. Noonan: Senator, I am not certain that we have written to the co-chairs. Our correspondence has been with counsel to that committee, a man named Peter Bernhardt. In his capacity as counsel for the committee, Mr. Bernhardt is aware of the route that we are taking and he has written to us recently to indicate that he has received a copy of this proposed bill and is aware of our proposal.
Senator Moore: Is this the usual way to proceed, as opposed to going back to the committee?
Mr. Noonan: We will have to go back to the committee. If the proposed amendment to the law is approved by this committee and by the other place and is eventually enacted into law, we will revise our regulation slightly to conform to the existing provision, and that particular revision will in due course be examined once again by the Standing Joint Committee for the Scrutiny of Regulations.
Senator Moore: Is this the first time that you have done this in this way?
Mr. Noonan: I believe it is the first time that we have amended the National Energy Board Act to respond to a concern of the Standing Joint Committee for the Scrutiny of Regulations. I do not recall any other instance where we have been required to seek an amendment to the act itself. We are frequently asked to make changes to the regulations and some of those regulations are within the scope of the board's own authority to enact. In other cases, we require the approval of the Governor in Council. We have certainly made many changes to regulations as a result of the concerns expressed to the board by the Standing Joint Committee for the Scrutiny of Regulations, but this is the only instance I am aware of where we have actually had to seek an amendment to the act in order to satisfy the concerns of that committee.
Senator Moore: I do not know if this is the way that these things should flow. It seems to be unusual.
The Chairman: Mr. Macpherson, perhaps you could help us on this. Senator Moore is concerned that this may not be the usual way that these things should flow or come about.
Mr. Macpherson: All I can do, Senator Moore, is refer you to the terms and conditions of the Miscellaneous Statute Law Amendment Program which allows any change to the Statutes of Canada that is not controversial and that does not prejudicially affect rights or create offences or subject new classes of people to offences.
Your question is whether or not this amendment fits under the Miscellaneous Statute Law Amendment Program, and I think your question is properly phrased: Does this proposal meet the criteria of the Miscellaneous Statute Law Amendment Program? Is it an amendment that is non-controversial? Is it an amendment that we can agree on and to which there would not be substantial disagreement by members of this committee or in the other place? Second, would it prejudicially affect rights?
We certainly looked at that when we were assessing the proposal. We balanced any prejudicial effect on rights of landholders who would be enjoined from excavating in the restricted area against the benefit to the public in the increased safety that the regulation would lead to. In our estimation, the advantages to the public outweighed any prejudicial effect on landowners who would want to operate in the restricted area for the three-day period.
The other criteria are whether it creates a new offence or whether it subjects another class of people to an existing offence. On that issue, it is close to the margin. It does not create a new offence. There is an existing offence to which it would subject people who operate outside the restricted area.
As to whether it is the correct procedure, I suppose another procedure would be to directly amend the National Energy Board Act, and that would require debate and would go through the normal channels. Perhaps a bill could be prepared for this one paragraph to be added to the section. However, it would be unusual to have an amendment of one paragraph be the focus of a bill. I would understand that that is why the National Energy Board submitted it through the Miscellaneous Statute Law Amendment Program.
Senator Bryden: As we are all aware, one of the concerns of legislators is that people's rights are not affected by way of regulation unless it is clearly stated in the act that the Governor in Council, or whoever the regulatory body is, is empowered to make such regulations. What appears to have occurred here, if I understand correctly, is that the Standing Joint Committee for the Scrutiny of Regulations found that there was no authority under your act to make this empowerment by way of regulation. Therefore, Mr. Macpherson, while you indicated that there currently is a law, if it is by regulation and the regulation is ultra vires, it is not a valid law in that it would not stand up in court.
Normally, the position of legislators is to say, "Bring the issue before us and we shall pass legislation either by increasing the empowerment to make regulations to cover that or, in fact, by covering it ourselves by the act."
This MSLA process is as close as Parliament could come, I think, to amending laws without debate, and I am sure that everyone is aware that it would be an abuse of the process if we were to pass a regulation that ended up, because of the way it is done, being an amendment to legislation that affected the rights of property owners, if I may use that term.
In keeping with that, I want to ask some specific questions since I do not understand this. How big is the restricted area?
Mr. Noonan: The restricted area can vary in width. It will depend upon the circumstances. In some circumstances, you will have a pipeline that has only a single pipe in a right-of-way. Particularly among the older pipelines, you will find that they have a 60-foot right-of-way. However, the TransCanada Pipeline system through Saskatchewan would have six pipes in their right-of-way, each spaced about ten metres apart. In addition, another pipeline company runs a pipe along their right-of-way, so that would add another ten metres. That is 70 metres right there. Of course, there is the 30-metre safety zone established by the statute on either side, and that would make it about 130 metres. Thus, you could easily have a situation where the pipeline company says, "We are going to declare a restricted area of 150 metres in which you are not to undertake any excavation for three-days until we can get our people out there to stake the locations for you so that you will not hit any of those pipes."
The key thing about the restricted area is that it is a temporary device that exists not to prejudice the property rights of the landowners but to protect their life and property so that they can carry on the work that they want to do.
Senator Bryden: Following your example, you would have a 70-metre right-of-way and a 30-metre safety zone on each side of that. The pipeline company could then add to that, for a three-day period, an additional five metres on one side.
Mr. Noonan: There is no aerial restriction. It would depend on the judgment of the pipeline company.
Senator Bryden: That is my point. Could they add 500 metres?
Mr. Noonan: If there was a serious concern they could. The obligation on them is to act reasonably. That obligation to act reasonably exists upon anyone who exercises a discretionary power. My assumption is that, in acting reasonably, they would consider the number of pipes in the ground, the extent of the right-of-way and the safety zones and come up with a reasonable figure that would prevent work from being done only for a three-day period. The pipeline companies are aware of the fact that, in a very large project, let us say a road building project, it is important that some work be done. I am sure that they would take that into account when suggesting to the party seeking permission what aerial extent the restricted area ought to be.
Senator Bryden: How frequently can they request the three to five days?
Mr. Noonan: They have an obligation, senator, to stake the pipeline within three days. There would be a three-day period once only. They would go out and, within that three-day period, stake the location. After that, the restricted area disappears.
Under the scheme of regulation, the excavator or landowner would have to enter into an agreement with the pipeline company concerning the activities they would be undertaking in respect of that land. An agreement usually encompasses terms and conditions. In certain cases where they will have to expose the pipes, a pipeline company may actually put a supervisor on site to ensure that no damage is done to the pipes.
Senator Bryden: If I understand correctly, then, if there is to be excavation near a pipeline, the pipeline company has the right to stake an area that, in their judgment, is wide enough or far enough away from their lines for safety purposes, and that means that no work gets done within the staked are for that period, but work can be done outside the staked area during those three days.
Mr. Noonan: Not quite, senator. It would not be staked. They would indicate to the landowner, "You know, we have a pipeline on your property, and we are declaring a restricted area of such and such an aerial extent for three days until we can stake the pipeline." Then when the pipeline is staked, that restricted area is gone. It automatically disappears. You are left with the right-of-way, which can vary in width. In the old days, it would be 60 feet, but if there are multiple pipes, it could be something wider. Beyond that is a 30-metre safety zone on either side of the pipeline right-of-way. The excavator can work within those areas provided that they have the written authorization of the pipeline company and are prepared to follow the safety terms and conditions that the pipeline company issues. If they cannot agree with the pipeline company, they can come to the board and obtain an order from the board, depending on the merits of the case.
Senator Bryden: There is a period of three days in which the pipeline company can find out where its pipeline is precisely and point it out to landowner or whoever wants to do the work.
Mr. Noonan: That is correct, sir.
Senator Bryden: Presumably, they mark that with something.
Mr. Noonan: They actually have different coloured stakes to identify where the pipeline is and where the right-of-way is. They are under an obligation. I think it is important to emphasize that. It is the obligation of the pipeline company to go out and stake the pipelines with the coloured stakes and explain to the excavator or the landowner the meaning of those various coloured stakes so that they will know where the pipes are and where the right-of-way is, and from that they can determine where the control zone is.
Senator Bryden: If I can go to the other end of the three days, the landowner has a project that is moving along, perhaps a highway or a ditch that a farmer is digging, and he needs to deal with the area that is a right-of-way for the pipeline company, including the safety zone, as soon as possible. Is there any obligation on the pipeline company to act quickly? Could he wait for a month before going out and determining where the pipeline is?
Mr. Noonan: No, sir. Their obligation is to do it within three days. We chose three days as a reasonable period. The pipeline companies do have staff throughout the country. We do regulate some small pipelines that are within a specific geographical area, but some of the largest pipelines in the country would run inter-regionally right across the country. For instance, the TransCanada Pipeline begins in Empress, Alberta and goes as far as Quebec. They will have staff at various locations. In some of those areas, even having staff in a particular location will not allow them to go out on the same day to do it. It will take several days, perhaps, to get out there. We have chosen three days as a reasonable period for the pipeline company to get its lands men out there to actually identify where the pipes are. Their obligation is to do that within three days.
I think we have also indicated in here that, under the proposal, there could be an agreement between the party making the request and a pipeline company to extend that period of time, but that would need to be mutually agreed upon. Otherwise, it is a three-day obligation.
Senator Bryden: I am concerned that we understand what this is. It is an application to the pipeline company by someone who wants to do something on their land, and the pipeline company then has the obligation to act within three days, unless otherwise agreed.
Mr. Noonan: That is correct, senator. During that three-day period, the pipeline company is empowered to tell the landowner or the contractor not to excavate within a defined aerial extent until they get their people out there.
Senator Bryden: If that three-day period expires without some other agreement, the pipeline company must give up on the restricted area.
Mr. Noonan: That is right. The three-day period would expire. The obligation is on the pipeline company to move immediately. The pipeline companies are well aware of the safety concerns, and they are well aware that the National Energy Board will take a very dim view of a failure to meet those kinds of obligations.
Senator Bryden: The landowner would be a little nuts, too, if the pipeline company says it needs another hour.
Madam Chair, I am comfortable with that. I do not see it as infringing on any property rights.
Senator Beaudoin: As a supplementary, did you say that the main statute does not allow the making of regulations? That is a serious defect.
Senator Bryden: No, it allows the making of regulations, but obviously the Standing Joint Committee for the Scrutiny of Regulations has found that the regulation-making power did not include this.
Senator Beaudoin: They have by statute the regulation-making power.
Senator Bryden: But they do not have the power to do this specific one, and that is why they are doing it this way.
The Chairman: Mr. Noonan, when Mr. Bernhardt was speaking to you, did he express any concerns about amending this particular piece of legislation following this route through the MSLA rather than the legislative route?
Mr. Noonan: No, Madam Chair, he did not. He indicated in his letter to us that he expects us to make some revisions to the regulations, and his committee will scrutinize it again. He offered some general comments on the legislative approach that we offered. He took some exception to it on the grounds that he thought it was convoluted -- in other words, the statute itself was convoluted. What we are doing here, of course, is patchwork on the legislation. If the act is ever overhauled, perhaps entirely different provisions will be put in place.
The Chairman: I have one question on your brochure. On the next fold over from the diagram of the right-of-way in the safety zone, you say that once the pipeline has been located and staked and the meaning of those stakes has been explained to the affected party within your three days, the restricted area will expire. You go on to say that excavation is not permitted in the restricted area without the prior consent and supervision of an authorized company field representative.
"Prior consent" to me means probably more than three days. Do you mean there that excavation is not permitted in the safety zone or in this further restricted zone that has already disappeared?
Mr. Noonan: Madam Chair, I believe that means that there can be no excavation within the three-day period unless the pipeline company has authorized it.
The Chairman: That probably should be made clear the next time they print your brochure. It is somewhat confusing.
Mr. Noonan: I will take that comment back and ensure that that change is made.
The Chairman: Thank you, Mr. Noonan for your presentation.
Mr. Noonan: Thank you.
The Chairman: I believe at this point, senators, rather than going on to pass this bill, perhaps we should meet again tomorrow morning in camera to discuss a report about it. We will not require any further witnesses to be here, but perhaps, Mr. Macpherson, you could make yourself available at our regular meeting time, which will be 10:45. We will have the staff draft up something rough for us to look at and consider, and we will carry on from there.
The committee adjourned.