Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 5 - Evidence, December 7, 2006
OTTAWA, Thursday, December 7, 2006
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill S-220, to protect heritage lighthouses, met this day at 9:40 a.m. to consider the bill.
Senator Bill Rompkey (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call the meeting to order.
I will first seek approval for our agenda. We will deal first with Bill S-220, an act to protect heritage lighthouses. Senator Carney, the sponsor of the bill, will appear as a witness, as will witnesses from Fisheries and Oceans Canada and Parks Canada.
After we hear from the witnesses, it is our intention to proceed to clause-by-clause consideration of the bill and hopefully deal with it, because this bill is now in its sixth incarnation. It has been studied almost to death.
After we consider Bill S-220, I want to move in camera for a discussion on our report on management of marine resources outside the 200-mile limit. We need to deal with that because our researchers want to begin to write, and it is important that committee members have input into what will be in that report before the researchers start to write. We will receive the report sometime in February and have a chance to go over it thoroughly at that time.
If that is agreeable, we will proceed on that basis.
I welcome Senator Carney and ask her to make a brief presentation.
Hon. Pat Carney, P.C., sponsor of the bill: I appreciate the opportunity to speak once again to this bill. As the chairman noted, this bill has been presented to the Senate five previous times. It was previously introduced in the name of the late Michael Forrestall. He and I were co-authors of the bill, to ensure that it covered both the Pacific and the West Coast. None of the five previous bills made it through the system to implementation.
Bill S-220 has the support of all parties. There is an NDP private member's bill on the same subject in the other place. The bill is supported in principle by Environment Canada, Canadian Heritage and Fisheries and Oceans Canada, and we have letters to that effect.
This bill is not a money bill. It was designed not to be a money bill by Senator Forestall and me. The Speaker of the House of Commons ruled on October 29, 2003, that it is not a money bill. He said:
After examining the bill, I can find no obligation for the spending of public funds either by the Historic Sites and Monuments Board or by the Minister of Canadian Heritage.
There was also a subsequent ruling that this is not a money bill.
Government property requires money to maintain, preserve, blow up, destroy or burn. Those expenses could be considered operational expenses. The object is to send the bill to the House of Commons. I have discussed amendments with the departments involved and have agreed to specific ones. I have asked for but have not seen other amendments. I can only proceed on the basis of the information we have.
This bill to preserve and protect lighthouses would do so by providing for the selection and designation of heritage lighthouses, providing an opportunity for public consultation before authorization is given for the removal, alteration, destruction, sale, assignment, transfer or other disposition of a heritage lighthouse. The bill also provides that heritage lighthouses be reasonably maintained.
There are only two real icons on the West Coast — one is salmon and the other is lighthouses. There is no legislation dealing specifically with heritage lighthouses. The current heritage rules are too restrictive. Only 3 per cent of our lighthouses across the nation have genuine heritage protection, and only 12 per cent have even partial protection. In B.C., the figure is even lower. B.C. has 52 of Canada's surviving 583 lighthouses. Of these 52 stations, only nine have been given heritage protection.
I will give you one case study. Point Atkinson is one of the nine lighthouses that have been given heritage protection. Built in 1874, Point Atkinson lighthouse is probably the most famous of Canada's West Coast lighthouses. It is at the entrance to Vancouver Harbour and is the signal for seamen from around the world. The people of West Vancouver have a nearly mystical attachment to their lighthouse and to the 185-acre lighthouse park, but they have no way of protecting the lighthouse.
Don Graham was Point Atkinson's lightkeeper until the light station was automated in 1996. He was one of the spark plugs for this bill along with Michael Forrestall and me. His lighthouse was designated as both a national historic site and a federal heritage building. Unfortunately, neither have the power to maintain the lighthouse. Point Atkinson lighthouse falls under the Department of Fisheries and Oceans, and the department does not have a mandate to preserve lighthouses and lighthouse properties. The department has a mandate to remove them, burn them or blow them up, but it has no mandate to preserve them.
Don Graham's widow, Elaine Graham, still lives at the site and works as a park attendant. In a recent letter of support for Bill S-220 she writes:
. . . since it was automated, the Point Atkinson light station has been abandoned to the elements, with no upkeep of its infrastructure. Only the two houses, which are rented by the District of West Vancouver, are being maintained. It is through this arrangement that the light station has not been subject to a greater degree of deterioration, vandalism, or worse. . . . No maintenance whatsoever has been given whatsoever to the radio room, boathouse, railings and walkways.
Remember that this is a heritage building. Ms. Graham continues:
The roof of the radio room leaks profusely. Its exterior paint has almost gone from the seaward walls. Despite constant pleas to all levels of government for its repair, nothing has been done. On the lower lawn, an army blockhouse of heritage significance has been completely neglected.
In the recent storms that flooded parts of the Lower Mainland and caused the country's largest ever boil water advisory, the roof at Point Atkinson was further damaged and the building again flooded.
Remember that a group of people is willing to take over the lighthouse and spend money to preserve it. We have no way of transferring that responsibility until this bill is implemented.
I do not think it would be useful at this time to go through the clauses of the bill. The goal is to move this bill through Parliament before a possible spring election. It is well-supported in the other place.
Amendments could be made to this bill, which I have worked out with the departments involved.
I will now be pleased to answer questions
Senator Hubley: It is a pleasure to have you at our committee, Senator Carney. I have a nice feeling about Bill S-220. I commend you and the former Senator Forrestall on bringing it forward.
You said that presently there is no way to transfer responsibility to community groups or other organizations that might be interested in preserving lighthouses. Is that correct?
Senator Carney: That is what the departments have told me, and that is the problem we face on my own island, Saturna Island, where a portion of the light station was transferred to another government department without any notification to the community. Also, a second lighthouse was destroyed within the last few years without notification to the community, which desperately wanted to use the lighthouse for a fire hall for support at that end of the island. The building, which was re-roofed by the community, was destroyed and removed. This has happened in other cases.
It is important to understand about West Coast and East Coast light stations that a light station contains a lot more than a lighthouse tower. That is why, in the amendments I have worked out with the department, we use the term ``built structure,'' because that term covers a helipad, a lifeboat launch and a winch installation. A light station is a tower, automated or not, staff buildings, garages, crew buildings and the whole paraphernalia. One amendment we are seeking in the bill is to define ``light station'' in a way that covers built structures.
The Chairman: Some lighthouses are owned by Fisheries and Oceans Canada, and some by Transport Canada; is that right?
Senator Carney: On the West Coast, they are owned by DFO.
The Chairman: I know of lighthouses that have been transferred to private interests. I know of one that is a bed and breakfast on Quirpon Island on the northern peninsula. It is owned by a couple and operated successfully. I know of others that have been turned over to Parks Canada and others to municipalities. I am wondering about the transfer, because lighthouses have been transferred to other authorities.
Senator Carney: That may be done on the basis of a lease, or it may be done on a slot basis, but if they are a heritage lighthouse, there is no way of maintaining the heritage aspects of the light station. One provision of the bill and subsequent amendments deals with the issue of legal instruments. Not all lighthouses are heritage, but if they are designated as heritage, subsequent owners would be required to maintain the heritage structure, as with any heritage building. That is important.
Senator Hubley: Does Bill S-220 and the transfer of responsibility open up funding avenues for groups who may want to preserve the character of our lighthouses?
Senator Carney: Most groups we have talked to or who have expressed an interest are prepared to do that themselves. The issue is that, as a light station is abandoned by DFO or is not operational, there are different categories of light stations. The categories are operational, surplus to requirement, and non-heritage. A lighthouse that is not operational and has been abandoned effectively by DFO deteriorates, and nobody has the mandate to look after it and maintain it. One problem that has arisen in the slow passage of this bill is that light stations that could have been taken over by community groups have been allowed to deteriorate.
Other stations are located on the B.C. coast in distant areas. Most of them are still operational, but they still could be designated as heritage. That is why the bill is a process bill. Some amendments that have been presented by the Department of the Environment deal with process. It costs money to maintain a lighthouse. As I say, if the department burns the lighthouse down like it did at Lucy Island, that costs money, too. The question is, do you put the money into the maintenance of the light station, or do you put the money into the destruction of it?
Senator Johnson: Thanks for coming this morning. I think we have established that many of these lighthouses fall under the control of DFO.
Senator Carney: Yes.
Senator Johnson: They do not have a mandate to look after them in terms of heritage.
Senator Carney: Yes.
Senator Johnson: Is it also true that a national historic site that is controlled by Parks Canada and one that is controlled by Fisheries and Oceans Canada receive very different heritage protection? Is not that the heart of this bill?
Senator Carney: Every light station is different, but there is no federal legislation that protects the heritage aspect, or gives a process to designate heritage beyond the restrictive present legal language, which was not designed for light stations.
Recently on Saturna Island, part of the light station property was transferred from DFO to Parks Canada, but it was done without any notice to the community, which used the light station as a regional park. The community fought for and won it as a regional park, and then they read in the paper that it had been transferred to Parks Canada, and immediately a whole bunch of restrictions went into place. You cannot get married out there. You cannot do this or that. The community was upset. This bill provides for a public process of consultation before properties are transferred. I hope the public process would extend to non-heritage lighthouses as a matter of course so if we dispose of property in the community, the community is informed, but that is beyond the mandate.
I want to stress that one amendment that will be made to this bill is that the bill will be restricted to federal jurisdiction. Under the present wording of this bill, when we get to that, the intent is federal jurisdiction, but it is not clear. The drafters have asked that it be clear that we are talking about federal jurisdiction. Other provincial light stations may be transferred, but we are talking about federal jurisdiction.
Senator Johnson: It certainly speaks to the need in terms of many heritage situations and sites.
Senator Carney: It is hard for people to watch their maritime heritage be destroyed, and disintegrate or be demolished before their eyes, because it is part of their mythology.
Senator Johnson: It even happened to our lighthouse on Lake Winnipeg.
Senator Comeau: Thank you, Senator Carney, for coming today to deal with this bill. You mentioned in your comments that there was now an NDP private member's bill in the other place. Is it mirror legislation, or is that something separate?
Senator Carney: It is, to all intents and purposes, mirror legislation. It was introduced as a fall-back in case the Senate did not pass this bill. The sponsor of that bill, Peter Stoffer, member of Parliament for Sackville—Eastern Shore, has told me that he will withdraw it ``in a heartbeat'' if the Senate proceeds with this bill. There is a strong intent on the part of MPs and many senators that their maritime heritage be preserved. If this bill fails, then Mr. Stoffer has indicated he will proceed with his bill.
Senator Comeau: You have looked in detail at the ownership of these light stations, lighthouses or whatever the wording may be. The ownership now, as I understand it, is with the Department of Fisheries and Oceans. If the bill were to pass, would the ownership then go to Parks Canada under environment, or would it continue to be part of Fisheries and Oceans Canada?
Senator Carney: Again, every light station is different. Many of these light stations are operating DFO stations. You recall that the Canadian Coast Guard was under Transport Canada, and therefore the light stations were under the control of Transport Canada. Then, in our wisdom, we transferred the Canadian Coast Guard, including the light stations, to DFO, and the real property went with them.
The bill lays out a process of designating heritage lighthouses, in which questions like yours would be answered. If a lighthouse is operating — and many of them will operate presumably for a long time into the future — it could be a straight operating DFO lighthouse, but it would still have heritage structures. That means the heritage aspect, for example, the Cape Beale Lighthouse, which has historic features, could not be destroyed by anyone unless it went through this process.
You heard this bill when you were chair of this committee. It sets out a process whereby people petition for a heritage lighthouse and the minister decides whether or not to proceed. Some public consultation is involved. Some of the amendments that have been proposed by the departments would speed up the process.
I cannot provide blanket answers for all lighthouses. Some are surplus to the requirement, some are operational and others are in some sort of limbo — they were national sites, but they are not maintained.
Senator Comeau: Theoretically, a lighthouse that is still operational would probably remain under DFO ownership. One that is surplus to DFO could be inherited conceivably by a local group. If a local group does not want the lighthouse, it could remain conceivably under the ownership of DFO, unless DFO invokes the divestiture program to get rid of them.
Senator Carney: This bill lays out a process whereby a lighthouse is designated. The purpose of the bill is to provide for selection and designation. It discusses the designation of the heritage lighthouses, because not all of them are heritage, and the way to preserve them.
Senator Comeau: The bill does not get into the ownership issue as such.
Senator Carney: The department in its wisdom may want to turn over a surplus lighthouse to a community group on the basis of a petition, which means a group wants it and willingly indicates it will preserve it. The group may be a band council, or the lighthouse might be placed on a West Coast trail where it could be used as an emergency shelter. Under the bill as it is constructed, people would petition for it, which indicates there must be support for ownership of the lighthouse.
On main island at Georgiana Point, through a lease arrangement the local community runs the lighthouse as a museum and has 10,000 visitors. That is a lot for a little island of a thousand people, but still it is not protected.
This bill is simple. It is not complex. The government is planning an omnibus bill to cover heritage of many other aspects in Canada. The omnibus bill, I have been told by the department, would cover such things as grain elevators. Given our colleagues, once they try to decide which grain elevator is heritage and which is not, we will all be in our graves before they decide how to deal with that.
When we talked to the department, the department officials agreed to separate out this bill, because it has been around for so long, and deal specifically with lighthouses. Of course, when they are ready to proceed, the two can be amalgamated.
However, I assume that the proper way of dealing with legislation is to pass this bill. When the government is ready to bring in amendments to general heritage property, they can do so at that time. To hold this bill up is self-defeating.
The representatives of the government departments I have met with agreed to separate out this bill and proceed with it, leaving aside the grain elevators, bridges and everything else. Good luck to them.
Also, that bill would come in with a $262-million cost estimate, and that expenditure is not in anyone's immediate priority. Again, that bill would not be passed by spring. We are trying to pass Bill S-220 before the roof falls in on the radio house at Point Atkinson.
Senator Baker: First, I want to congratulate the witness for this bill. Along the lines of the question that you asked yourself, chair, concerning lighthouses, the fact is that we do not have any lighthouses left on the East Coast. If we have them there, they are automated and not manned. We went through that battle years ago.
With respect to many lighthouses around the coast, I noticed that British Columbia did not undergo the same vacating of manned lighthouses that we did on the East Coast. We did not go through the same process of getting rid of lighthouses: not just the manning and automating of them but the actual closure of lighthouses all along the coastline of Newfoundland.
When I look at the bill, I wish that everyone had paid attention to you years ago and passed it because perhaps we would have had some opportunity to preserve what should have been preserved years and years ago.
I do not have a concern about this. The questions that arise in my mind are, I think, similar to those of the chair.
Many of these lighthouses have been assumed by local municipalities in a great many cases. They have assumed responsibility for them. They own them as a little bit of a tourist attraction.
If those lighthouses are designated as heritage lighthouses, what kind of financial responsibility would be placed on these people? From a legal standpoint, have you thought about who holds the onus?
Do you envision in those cases where a lighthouse is designated, a lot of lawsuits where private organizations or municipalities say to the federal government, you are passing this bill, now you owe us money to maintain it — not just the light station but outbuildings, attached buildings or detached buildings on the same site?
Have you thought about that, given the fact that so many lighthouses have closed over the years since you first introduced this bill?
Senator Carney: Again, my answer to that is, this bill was designed not to be a money bill. Money bills cannot originate in the Senate.
The Speaker in the other place has twice ruled there is no obligation for spending of public funds on these buildings. That is the ruling as a result of this bill. Other legislation may require protection on the expenditure of public funds, but that protection applies to every heritage structure, whether it is a canal, railway station or whatever. The government is obviously prepared to spend money on heritage stuctures because they are bringing in an omnibus heritage bill.
I cannot answer you specifically on that question except to say that this bill does not incur on the Government of Canada by the Speaker's ruling a monetary obligation. It provides a process for dealing with the designation of historic sites.
Of course, those things that you talk about may go into the consideration of this bill, but that is not the purpose of it. This bill is designed only for a process so that lighthouse stations can be designated heritage or not. The points you raise would contribute to that.
The bill also lays out a process for disposal, of turning over these lighthouses to community groups to spend the kind of money you are talking about to maintain them. There are communities that would do that.
When we talk about maintaining the heritage aspect of a light station, Senator Forrestall particularly cited the example of McDonald's. He did not want a heritage lighthouse on the East Coast turned into McDonald's. That is not likely to happen on the West Coast because unlike the East Coast, where there are roads to most of the light stations, and many of them are accessible to communities, most of the light stations on the West Coast are in totally isolated areas, not necessarily close to any settlement. They are not likely to attract even a maritime McDonald's.
Again, every light station is different. Senator Forrestall and I did not intend to bring in legislation that would save every light station — all the 532 light stations or whatever in Canada. Our bill is intended to save and preserve the heritage lighthouses and to provide for a process of turning them over to communities to utilize them rather than have them destroyed.
The record shows that lighthouses have been blown up in Georgian Bay. They have been burned down on the B.C. coast. They have been destroyed on Saturna Island, where both the light tower and the crew houses were destroyed; and our lighthouse was certainly a historic site. We want this bill to save whatever is left before they disappear.
With regard to operational costs, every light station costs money to paint, maintain, mow the lawn, fix the lights, et cetera. That will continue. Right now, if you turn it over to a community group, no legislation covers the heritage aspect of it.
Estevan Point on the west part of Vancouver Island has designated heritage features because it is eight-sided; but Estevan is hell and gone out on the end of a peninsula on the far west side of Vancouver Island. It is not a drop-in centre. You can fly in or go in by boat. It is unlikely to have any commercial operations, but it has many uses. We want to maintain the heritage aspect of those lighthouses.
Senator Baker: The fact that the bill does not anticipate any federal expenditure —
Senator Carney: That is not what the Speaker said. It does not anticipate adding additional expenditure. The process of designation does not require public funds.
Senator Baker: Why did you mention $261 million a moment ago?
Senator Carney: That is the cost that has been given to me, implied in a separate bill being drafted by the Government of Canada, by several departments, which will cover a whole range of built structures that are not now covered by the Historic Sites and Monuments Act, which names railways, canals and other specific built structures.
The government is designing an omnibus bill to cover everything else, including prairie grain elevators. That is why, since this bill has been drafted already and specifically deals with light stations, the government spokesman who attended our meeting said, let us proceed with this bill separately.
Senator Baker: I still think, though, if a lighthouse were designated as a heritage lighthouse, for persons who have now assumed responsibility for the heritage lighthouse in whatever way, that person or group of individuals would be under an obligation, as I listened to you describe your bill a moment ago, to maintain that structure.
I note the research bureau said that the bill was modelled upon the Heritage Railway Stations Protection Act. I recall that the railway was under a responsibility to cough up the money to maintain those structures.
However, all the light stations that have now been disposed of in Newfoundland and Labrador that are controlled by private entities — municipal councils and so on — under your bill, there would be a requirement to spend money by someone. Since you do not think the federal government would spend that money, who would spend the money? Have you considered the legal implications of imposing an expenditure upon some poor community that cannot afford to put in a water system?
Senator Carney: May I point out that the bill applies to light stations under federal jurisdiction.
Senator Baker: It does not apply to light stations in Newfoundland that —
Senator Carney: I do not know. It applies to those in Newfoundland under federal jurisdiction. If I may read the Speaker's ruling from the other place, that may answer your question. This is the second ruling about this bill, on Monday, June 20, 2005. This bill was still close to being implemented. The chair — I suppose meaning the Speaker — said:
. . .this bill, of and by itself, does not create an authorization for new spending for a distinct purpose. For example, the bill does not create a new agency to protect heritage lighthouses, nor does it set up a program for funding the maintenance of lighthouses. This bill simply provides a mechanism for designating heritage lighthouses and requiring that they be reasonably maintained. These provisions do not authorize new spending for a distinct purpose.
Then he goes on to say, the Speaker
. . .acknowledges that at some point in the future when heritage lighthouses are designated, there may be an expenditure of public funds. However, I would characterize those expenditures as falling within departmental operational costs, for which an appropriation would have been obtained in the usual manner. From year to year, such expenditures would vary depending on the condition and number of heritage lighthouse structures and on the effects of weather. Such operational expenditures are covered through the annual appropriation act that Parliament considers and approves.
He rules that Bill S-14 does not require a Royal Recommendation. I can only add that these buildings right now are maintained by government agencies or not. If you do not want to preserve your heritage, and if you want the Point Atkinsons of this world to deteriorate, crumble and fall apart before the public's eyes, that is a political decision. However, the whole basis of our Historic Sites and Monuments Act, the whole idea behind heritage protection is to protect our heritage.
Senator Baker: This bill will apply only to lighthouses that are owned and operated presently by the federal government, is that correct?
Senator Carney: That is the intent of the bill.
Senator Baker: That is the important distinction, I think. The Speaker's ruling that you quoted had the key words there, not just to designate them but ``requiring that they be reasonably maintained'' by whomever would operate it.
However, your explanation is that the intent of the legislation is not to extend this bill to lighthouses that are not presently owned and operated by the federal government.
Senator Carney: That is clear. We are prepared to entertain an amendment to make that clear. The counsel of the Senate — and in the correspondence with the department — has asked that we ensure that intent is written into the bill somehow. I was told that amendments to that purpose would be presented.
Senator Baker: I suggest also that the non-requirement in this bill, as it is presently structured, for an expenditure of public money is further justified on the basis that we as a Senate can pass bills that, for example, could lead to an expenditure of public money but which do not directly lead to an expenditure of public money.
For example, with the reduction of income taxes, and so on, we have that authority in the Senate. Someone could argue that if we take away something from someone, it will lead to an expenditure of public money because we have to make it up some other place. The bill is on good grounds in its restriction to federal property presently operative. Those arguments negativing the intent of the bill would then not arise.
Senator Adams: I am sorry to be a bit late. I was at another committee.
Senator Carney, I have been at one of the heritage lighthouses down east and I think it is an attraction for tourists. When we studied some lighthouses, you chaired the committee. We picked out a site at that time and we heard from a few witnesses from B.C. Many lighthouses have been abandoned. Some of the lighthouses you are concerned about are on the mainland, but most are on the islands. It will be hard to keep the lighthouses. They have to travel back and forth by ferry to go there. People want to visit heritage lighthouses. Can you locate the ones that you are concerned about now? If the bill passes, which ones should be heritage lighthouses?
Senator Carney: The minister would designate that. The bill sets out a process of petition. Let us say we had a lighthouse at Peggy's Cove — or wherever we had a light station. The bill lays out a process where people petition to have it considered heritage. There is then a process set out under which the minister can or cannot designate it as heritage.
I can give you some figures. As I said, there are three different categories of light stations. First, there is operational, which are the ones that are used. On your point, the reason we have staffed lighthouses in B.C. is because we fought for them and stopped the destaffing for maritime safety and weather. We spent many years on that. People wrote in from Fort Nelson, which is as far as you can get from the coast in British Columbia, for maintaining them. We fought for them, which is one reason Senator Forrestall wanted to save the heritage lighthouses. Second, there is surplus to requirement lights. Approximately 200 light stations are surplus to the department's operational requirements or expected to be surplus within the next few years. Approximately 124 of those are known to be candidates currently for community-group takeover at some point. That is why this bill is designed in this way. If someone wants to petition to have a heritage light or to seek heritage preservation for one, this bill lays out a process. It also lays out a process that if you, Senator Baker, acquire the light, you cannot interfere with its heritage features any more than if it was a canal, a railway station or the community hall in Saturna, which is 70 years old, and for which we are receiving heritage designation.
This bill is designed to comply with the existing Historic Sites and Monuments Act. It sets out a process to designate lighthouses. It is set out in the summary of the act, which states:
This enactment protects heritage lighthouses within the legislative authority of Parliament for providing a means for their designation as heritage lighthouses; by providing an opportunity for public consultation before authorization is given for the removal, alteration, destruction, sale, assignment, transfer or other disposition of a designated heritage lighthouse; and by requiring that designated heritage lighthouses be reasonably maintained.
Senator Adams: I do not know if Senator Carney is answering my question or Senator Baker's question.
You said the minister will approve it.
Senator Carney: The minister has the final authority.
Senator Adams: It must go through the municipality; the minister will not have staffing in lighthouses.
Senator Carney: I do not really understand.
The Chairman: If it is turned over to a municipality, then the municipality must operate it but the municipality must continue to maintain the heritage aspects of the lighthouse.
Senator Adams: Right now, will the minister choose the heritage lighthouses in the municipality?
The Chairman: The answer is yes.
Senator Adams: In my community, the mayor will say, ``I want to keep that lighthouse for tourism and for people to come to this community.'' You are now saying that you do not care where the lighthouse is sitting and the minister will choose the ones that will be called heritage lighthouses. Is that what you are saying?
The Chairman: The minister has the ultimate authority. As I understand it, a petition arises from an area of the country where that lighthouse is located. The petition then comes to Ottawa. The minister has an advisory committee; the minister must consult. Ultimately, however, the minister will take a decision that this lighthouse is a heritage lighthouse and the heritage aspects of the lighthouse must be preserved. The minister will then, presumably, allow the community to take over that lighthouse if the community is prepared to preserve the heritage aspect and if it has the money to do it.
That is the process, as I understand it.
Senator Baker: On a point of order, I think Senator Adams asked the question because the witness said, ``We did not have very many lighthouses on islands.'' As you know, Mr. Chairman, B.C. is not the only place where they have lighthouses on islands. Senator Adams was saying that if there is a heritage lighthouse, then who will provide the ferry service. Was that your question?
Senator Adams: Yes.
Senator Baker: It was about transportation back and forth. It was asked because Senator Carney had suggested that perhaps there were different lighthouses on the West Coast than there were on the East Coast.
Senator Carney: Senator Baker, let me clarify. Senator Adams and I are old buddies from the Northwest Territories when I lived in Yellowknife and he lived in Rankin Inlet. There were not many lighthouses in his jurisdiction at that time. I was referring to our homeland of the Northwest Territories and not to the East Coast, which he well knows.
Senator Johnson: All this speaks clearly to the inadequacy of our present policies with regard to heritage sites, not just lighthouses. I know what happened with our old railway building where I come from on the Prairies, because there was not a process. It was appropriated. It was designated under what is called the recognized category. There are several different categories, which means that almost anything can happen to those structures if they are not given any protection whatsoever.
Only 90 lighthouses in Canada have classified status and in British Columbia, what is it, three?
Senator Carney: I do not know what the current figures are.
Senator Johnson: That leaves the rest of them up for grabs in terms of what happens to them. There is no proper process.
Senator Carney: The latest figures I have is that of our 52 stations, roughly half are staffed and operational. Of the 52 light stations, only nine have been given heritage protection. That does not mean that anyone fixes them. Point Atkinson has heritage protection but no one has the mandate to repair the roof, and it is falling into disrepair. As Elaine Graham points out, it is deteriorating. The roof leaks and the exterior paint is almost gone. On the lower lawn, an army blockhouse of heritage significance is being completely neglected.
Having heritage designation does not mean that someone will fix the roof, unless this bill is passed allowing for a process where community groups can take on that responsibility.
Senator Johnson: Having worked with this for so many years, how long does the process by the Federal Heritage Building Review Office presently take?
Senator Carney: It is a lengthy process.
Senator Johnson: Would your bill facilitate it?
Senator Carney: Under our bill, the process will still take a long time to complete. The departments have suggested they would like to speed it up, and they can do that. There is enough flexibility in the bill that if a department wants to speed it up, they can.
The minister can move quickly or at leisure, depending on when a petition is organized and when a petition is presented.
Senator Johnson: The longer we wait, the more the facility will fall and the cost will rise.
Senator Carney: Yes: There is a socioeconomic cost because the facilities deteriorate and no one is mandated to fix them. The community of Saturna Island actually repaired the roof of the second lightkeeper's house, and the house was still taken down and moved off without any consultation with the island.
Senator Johnson: We all must take into account that in this country not only the environment but the desire for people to preserve their heritage in various ways is important to them.
Senator Hubley: I want to go back to the chain of responsibility.
If a designated lighthouse that is now under the jurisdiction of the federal government is turned over to a community group, and if for some reason that community group is unable to raise the funds or as a result of changing personnel, for instance, is not able to maintain the lighthouse and wishes to divest itself of it, is the responsibility still there to go back and start the process over again? Does the federal government still hold some responsibility?
Senator Carney: I am not familiar with the Historic Sites and Monuments Act, but this bill refers to a legal instrument maintaining that whoever takes on the responsibility of the light station is required to properly maintain it. The bill has three sections: designation, protection and maintenance.
Senator Hubley: If for some reason plans fall apart — for example, the community does not have the funding they thought they had, or they cannot maintain the funding year after year — what is their recourse to divest themselves of that lighthouse?
Is it the group's responsibility as enshrined in Bill S-220 to start it themselves, or does the federal government still hold some responsibility in maintaining that lighthouse?
Senator Carney: Granting heritage designation does not ensure the government must maintain it. The owners, whether it is government or non-government, hold that responsibility. I do not imagine that the situation you talk about would be any different, whether it was a lighthouse or a railway station.
Senator Hubley: Prince Edward Island's lighthouses are more apt to, as a result of the environment and erosion, find themselves in what I think would be a major expense.
The same thing happened when community groups were given schoolhouses. That was a few years ago. Today, one or two people are trying to support that schoolhouse because they are the last members of the group. They have difficulty with knowing it is their responsibility, but there is nothing written into the original agreement as to how that responsibility shifts once they are no longer capable of looking after it.
Senator Carney: The designation of heritage lighthouse would include specific criteria, and those criteria are prescribed under conservation legislation now. Therefore, it would be dealt with, presumably, as any heritage aspect. Those standards were international.
Senator Hubley: If they wanted to move, they would return to the process, and whoever took over from that particular group — I guess I am going to the next step.
Senator Carney: The minister presumably has that situation covered in the criteria of the bill.
In the English version, the minister talks about criteria. In the French version, the minister refers to regulation. However, in the criteria for disposing and transferring the sale of a lighthouse, those kinds of situations would be made clear.
Senator Watt: I want to see whether I have a clear understanding of this. One area worries me to a certain extent, and that is contained in the bill itself.
Do you provide a mechanism in the bill after the petition has been identified dealing with the one given lighthouse — and there is an interest within the community, otherwise they would not come up with a petition.
Senator Carney: Yes.
Senator Watt: Running through that process, the minister then must react one way or the other, I imagine, on that one given lighthouse. Do you follow me so far?
Senator Carney: Yes.
Senator Watt: What worries me is that if the process is not built into the bill itself, what happens if the community wants it but they do not have the means to put that under their authority, and the minister recognizes that? Does the minister still have a role to play in terms of what happens to that given lighthouse in the negotiations? Could the minister hold it back by determining the community is not ready to take over the responsibility?
Senator Carney: The Canadian Heritage minister may at any time, taking into account the prescribed criteria, consider whether a lighthouse should be designated as a heritage lighthouse and whether any related site or built structure should be included in the designation. The minister can then make a recommendation to the Governor-in- Council respecting the designation.
Therefore, clearly, those kinds of factors need to go into the minister's decision.
In section 8(2), the bill also says:
Within five years after the coming into force of this Act, the Minister must, taking into account the prescribed criteria,
(a) consider all lighthouses in respect of which the minister receives a petition;
(b) determine which of them should be designated as a heritage lighthouse and whether any related sites or structures should be included in the designations; and
(c) make recommendations. . . .
Then, 90 days after the expiration of the period,
. . . the Minister must publish. . . a list of all lighthouses that the Minister has considered for designation as heritage lighthouses under this Act, indicating, for each lighthouse, whether or not the Minister recommended that it be designated as a heritage lighthouse.
The minister, with an advisory group or the board, whichever has discretion, would reach a decision on whether the site meets heritage standards and whether this process is a better way of disposing of the lighthouse than allowing it to be vandalized, deteriorate or crumble. That will be at the minister's discretion.
If you are asking me whether the minister is eternally responsible forever for what happens to a heritage lighthouse, I do not think any more so than the minster is eternally responsible for the preservation of any national historic site. The criteria would establish the answers you are inquiring about.
Senator Watt: I imagine that the minister would reserve a decision until the minister knows for sure that the people who have presented the petition are prepared to enter into the next stage of negotiations with Canadian Heritage, for example. Why would the minister give up responsibility until there is a clear indication that Canadian Heritage will provide some assistance to the community?
Senator Carney: I cannot speak for the Minister of Canadian Heritage and the policies she introduces. There is a clear implication that she would consult with, and take advice from, municipal and provincial agencies. Every province is different. Some provinces have funds to assist heritage structures and others do not. In B.C. there is little money for heritage. That is why this bill is for light stations under federal jurisdiction. We cannot bind the hands of the provinces.
Should this bill finally pass, lighthouses would not be the only heritage structures in Canada to be affected by it. Many heritage structures would be — many in this city. The bill specifies that it must follow existing criteria. This is not the only heritage protection in the country.
The Chairman: Thank you very much, Senator Carney. We now invite you to join us at the table.
I will invite the people from Fisheries and Oceans Canada and Parks Canada to join the other senators at the table.
Senator Carney: Is there a provision, when we have the translations, to table the letters of support from the ministers involved and the B.C. caucus?
The Chairman: Yes.
Senator Carney: Will I have the right to question the departmental officials?
The Chairman: Yes: Any senator has the right to question witnesses.
Senators, representatives of the Heritage Canada Foundation are with us this morning as interested observers. They have submitted a brief that will be circulated to you for your information. We thank them for being here.
Larry Ostola, Director General, National Historic Sites, Parks Canada: I want to thank the committee for the opportunity to discuss the potential cost implications of Bill S-220. Officials from the Parks Canada Agency infrequently have the pleasure of appearing before the Standing Senate Committee on Fisheries and Oceans. We are here today because the minister responsible for administering this bill would be the Minister of the Environment, to whom the agency reports.
Bill S-220 recognizes that many Canadians have a strong attachment to lighthouses and that lighthouses are icons of our maritime history. Owing to this important role, 14 lighthouses are already commemorated as national historic sites, and 126 are designated under the Federal Heritage Buildings Policy. Bill S-220 would likely provide them with statutory protection, a principle that is laudable and deserving of support. In fact, lighthouses would be protected to a degree greater than most of Canada's historic places, including the national historic site in which we are meeting today.
We appreciate the attention that the standing committee is giving to this bill and we feel that the consideration of its potential implementation costs is an important issue. Speaking on behalf of the Parks Canada Agency and colleagues from Fisheries and Oceans Canada, one of our main concerns with Bill S-220 is that it does not include any control over costs.
Because it is entirely open-ended in this respect, it is impossible to accurately predict what the costs of implementation would be. The best we can do is to provide you with a range of preliminary cost estimates.
To predict its costs we need to know approximately how many designation proposals might come forward. However, we do not have any order of magnitude because the bill indicates the proposals will be made through a public petition process. That being said, petitioners are not provided with any guidance in the bill to gauge the importance of a lighthouse to Canada's history. However, we understand that expectations for protecting lighthouses are high among interest groups and the bill's advocates.
As well, the bill does not specify designation criteria. The criteria would be developed after the bill is enacted. Without any guidance regarding significance, lighthouses that may be important only as local historic sites or community landmarks, as well as those of national significance, need to be included in a range of cost estimates.
There are also several ambiguities inherent in the bill that add to the difficulty of estimating its implementation costs. I want to review these ambiguities and indicate how we have treated them in determining the cost estimates.
The bill's definition of ``lighthouse'' would comprise 256 light stations owned by Fisheries and Oceans Canada and Parks Canada, and 504 aids to navigation owned by Fisheries and Oceans Canada that the public perceives as lighthouses.
I will defer to colleagues from Fisheries and Oceans Canada to comment on this distinction. However, the effect of including aids to navigation is to create a threefold increase in the number of properties that could be considered for designation as heritage lighthouses under the bill, and we have included them in our range of cost estimates.
The definition of ``heritage lighthouse'' includes any related structure on a lighthouse site, for example, lightkeepers' residences and foghorn buildings. This definition could result in a several-fold increase in the number of structures that would be included within a designation. At this time, we do not have an appreciation of the impact of this definition; therefore, we have not included related structures in our range of cost estimates.
The application of the bill indicates ``lighthouses within the legislative authority of the Parliament of Canada.'' Under the Constitution Act, there is exclusive federal jurisdiction over beacons, buoys and lighthouses. While perhaps unintended, it appears that the bill could apply not only to federal lighthouses, but also to privately-owned lighthouses as well.
Fisheries and Oceans Canada has divested over 130 lighthouses. Perhaps as many as 65 may still function as aids to navigation and fall within the ambit of this bill. As this possibility needs to be confirmed, we have not included privately-owned lighthouses in our range of cost estimates.
The maintenance obligation, which is to maintain a lighthouse in a reasonable state of repair and in a manner that is in keeping with its heritage character, is imprecise and could be interpreted as requiring an extremely high standard of care. We have interpreted the definition in that vein, and our colleagues from Fisheries and Oceans Canada may wish to comment on the impact of this interpretation in relation to their capital rust-out challenges.
Another implication of the maintenance obligation relates to the Fisheries and Oceans Canada divestiture program. Approximately 150 lighthouses are within the Fisheries and Oceans Canada real property inventory for which there is a reduced program need, and divestitures are, or would be in the future, pursued. Bill S-220 could impede this program. If the obligation for an extremely high standard of care applied to any of these lighthouses, there would be no reason for a community group to assume ownership.
Furthermore, any third party may be reluctant to consider assuming ownership of a lighthouse given the possibility that it could be designated, and the costly maintenance obligation would then apply. We have assumed that, under Bill S-220, all lighthouses currently under the ownership of Fisheries and Oceans Canada would remain under its ownership.
Given the uncertainty regarding the number of proposals that may come forward, the lack of designation criteria and the ambiguities inherent in the bill, we have developed a range of cost estimates based on proponents' expectations and experience with other built heritage protection legislation and programs.
The first cost estimate is based on expectations. We understand that interest groups would like to protect as many lighthouses as possible. Therefore, we developed a cost estimate at a 100 per cent level of designation. Under this scenario, 760 lighthouses would be designated, and the implementation costs would be approximately $384 million over five years and $30 million per year thereafter.
The second cost estimate is based on experience with the Heritage Railway Stations Protection Act. Since its enactment, there has been a 60 per cent level of designation. Under a similar scenario, 450 lighthouses would be designated, and the implementation costs would be approximately $235 million over five years and $18 million per year thereafter.
The third cost estimate is based on designating only the most outstanding examples of federal built heritage, those that meet the standard of national historic sites and classified heritage buildings under Treasury Board's real property policy. Under this scenario, 8 per cent of federal lighthouses would be designated, and the implementation costs would be approximately $85 million over five years and $7 million per year thereafter.
In these scenarios, 90 per cent to 95 per cent of the costs would accrue to Fisheries and Oceans Canada. These estimates do not include the additional costs for privately owned lighthouses and ancillary structures.
Providing you with an 8 per cent to 100 per cent range of costs may not be informative. Our best guess is that the second scenario, which again is $235 million over five years and $18 million per year thereafter, is a strong possibility because Bill S-220 was apparently modelled after the Heritage Railway Stations Protection Act. However, there is an important distinguishing feature between these two legislative initiatives. The majority of the implementation costs for the Heritage Railway Stations Protection Act accrued to railway companies, whereas the majority of the implementation costs for Bill S-220 would accrue to the federal Crown.
A further cost implication may arise. This bill is the second private member's bill to address a single type of building, the Heritage Railway Stations Protection Act being the first. If the bill is successful, additional bills could come forward to protect other individual building types, such as post offices, armouries and grain elevators, to name only a few. The Auditor General made an observation in the November 2003 report on the protection of cultural heritage in the federal government that the list of historic sites and federal heritage buildings contains many similar sites or buildings. One of the examples cited was lighthouses. The Auditor General went on to say that the time has come to adopt a more strategic and global approach to the protection of cultural heritage. The federal government needs to define more clearly the results that it seeks related to heritage protection, the means available, and the resources that it can earmark.
I conclude my remarks by expressing our concern that the level of protection provided by Bill S-220 could significantly exceed the federal interest, and require resources that might otherwise be used to reply to the Auditor General's recommendation for a more strategic and global approach for the protection of all categories of built heritage.
Cal Hegge, Assistant Deputy Minister, Human Resources and Corporate Services, Fisheries and Oceans Canada: Like my colleagues from Parks Canada, it is a pleasure to have an opportunity to speak to this important bill to protect heritage lighthouses. Canadian lighthouses, which date back to the 18th century, were built to ensure marine navigational safety. The growth of shipping and marine navigation in the 19th century led to building hundreds of lighthouses on Canada's coasts, along the St. Lawrence River and on the Great Lakes. Many of Canada's lighthouse towers still serve their original purpose as aids to navigation, which is evidence of a continuing, thriving maritime trading system.
Canadian lighthouses also remain a point of pride for this department, both Fisheries and Oceans Canada and the Canadian Coast Guard. To be sure, lighthouses are as important to the DFO and the staff of the Canadian Coast Guard who manage and maintain them for operational purposes as they are to Canadians who live near them or visitors who come to see them.
The principles of Bill S-220 are laudable, but the department does not have the financial resources to cover implementation costs. We recognize the historic and cultural value of heritage lighthouses, and the objectives of the bill are consistent with federal government efforts to build a culture of heritage preservation.
The safety and security of mariners remains a primary focus for Fisheries and Oceans Canada and the Canadian Coast Guard. We want to ensure that the application of the bill does not impede the department's ability to make operational decisions related to current and future use of light stations as they relate to marine safety and security. In other words, for those structures that are required for program purposes, we need to be free to make the necessary alterations that may be required to fulfil our safety and security mandate properly, as program circumstances and emerging technology necessitate.
While it is difficult to predict where operational obligations and technology may take us in the coming years in the context of this bill, we must remember that our lighthouses, which have evolved into cultural icons and treasured landmarks to their communities, were first and foremost designated and constructed to support the delivery of a safe and efficient marine transportation network. Our needs could entail a simple requirement to erect a satellite dish or affix similar communications and related electronics equipment to these towers to ensure the ongoing delivering of our program operations. However, this requirement could be difficult, if not impossible, if, at the same time, we are bound by legislation to maintain the current appearance and heritage characteristics.
I also note for the committee that due to mounting financial pressures coupled with the marine aids modernization initiative, the traditional role of lighthouses has been reduced. Consequently, during the past 20 or so years, DFO has recapitalized only those assets that are required for operational purposes. The majority of these funds have been invested in staffed sites in British Columbia and Newfoundland and Labrador, and only to deal with the most urgent health and safety concerns. Further investment has not been necessary in the remaining structures, as often the necessary program service can be delivered more efficiently with, for example, a light on a steel pole.
Current policy requires the divestiture of surplus properties and precludes significant investments in properties that are no longer required for program purposes, as funding is provided to support ongoing program objectives. For some time now, DFO has worked with community groups and non-profit organizations to transfer lighthouses of local interest for a nominal sum. This transfer has helped reduce the ongoing costs and liabilities for DFO and supported the communities' efforts to develop alternate economic opportunities for these local landmarks.
The existing reference levels of DFO cannot absorb current or downstream costs related to the passage of this bill. We are stretched to maintain our assets with our existing financial resources. Currently, the annual departmental operating deficit for core real property assets is in the $30-million range. If the bill is passed without the necessary funding, the resources to support heritage could only be funded by diverting core program funds, which would be inappropriate in the context of our mandate and could compromise our ability to deliver program services.
As noted, funding is a serious concern in all departments. As the responsible assistant deputy minister as well for the small craft harbours program, I want to point out that this infrastructure program is seriously underfunded, which prompted the June vote in the House of Commons to unanimously support $35 million additional funds for this program. This example is only one of a funding shortfall in our department and this bill could significantly add to our budgetary pressures.
As custodian with new responsibilities under the bill, DFO could no longer defer structural repairs required to ensure that many of these heritage light stations remain standing. In fact, DFO will require access to some funds immediately, as repair work cannot be delayed further if many of these heritage lighthouses are to be protected, as proposed in the bill.
Mr. Chairman, I will skip over the next several paragraphs because they relate to costing, and my colleague has already covered those. I conclude by saying we would be pleased to answer any questions.
Senator Johnson: Thank you for appearing today before us on this important piece of legislation. Bill S-220 calls for a process. Why do you have such a problem with the process? You anticipate costs that may not even happen, and your evaluation of lighthouses, after the fact of this, may not prove to have this kind of cost. You are basing cost on the railway model. Can you answer that for me?
You are anticipating, of course, and I understand that in terms of the financial side. What is wrong with having a process to look at our heritage? Lighthouses are a good example. As an aside, I come from a community where we lost a railway station because it was allowed to deteriorate. We could not obtain decisions; the community was not allowed to proceed.
We could not obtain a designation, even though the thing was fine and they received the designation down the road. I do not see anything wrong with the process. Then whatever happens with the process will dictate the costs.
Doug Tapley, Manager, Cabinet Affairs, Parks Canada: We support, in principle, the idea there is a process for designating and protecting heritage. That is laudable.
In terms of costs, the bill sets out a process that foresees petitions coming from the public. There would be an opportunity to hold a public meeting to discuss those petitions. Some research would be done by a board of experts. That research would lead to a consideration of a designation. After that, there would be an obligation to maintain a designated lighthouse in a manner that is in keeping with its heritage value. Perhaps for that to happen, a major capital investment would be needed to rehabilitate the lighthouse.
You would not find those costs now. If you were to look into our departmental performance report, you would not find a heritage lighthouse program against which we currently make expenditures of the type that I just mentioned. Nor, if you looked at our report on plans and priorities, would you find that we had set aside any funds in the future for that particular purpose. Our perspective is that the spirit and intent of the bill would lead to expenditures; and we took that particular perspective in developing the cost estimates.
Senator Johnson: To be more specific then, 14 lighthouses have been designated as national historic sites. What does that designation mean? Can you explain what type of protection this type of site receives?
Mr. Ostola: The Historic Sites and Monuments Board of Canada is an advisory body to the Minister of the Environment. It makes recommendations to the minister regarding the designation of persons, places and events of national historic significance. The minister would then determine whether to accept those recommendations.
If the recommendation was approved, a person, place or event would be considered to be of national historic significance. A place, for example, would be designated a national historic site. That being said, that particular designation does not afford protection. For example, the Parliament Buildings are a national historic site but are not subject to any statutory protection.
Senator Johnson: You also say that 126 of these buildings have been designated under the Federal Heritage Buildings Policy. What kind of heritage protection does this afford?
Patricia Kell, Director, Policy and Government Relations, National Historic Sites, Parks Canada: The Treasury Board policy that relates to federal heritage buildings, such as the national historic sites program, sets up a method to evaluate and for the minister to designate federal heritage buildings. Once those buildings are designated, under policy, the departments are required to look after the heritage character of those buildings throughout their life cycle. In practice, this obligation is balanced against departments' own mandates.
Senator Johnson: I understand that these lighthouses fell under the control of DFO, which does not have a mandate to look after heritage. You have your classic Canadian scenario — whose responsibility is it?
Senator Cowan: Who is on first?
Senator Johnson: Is it not true that a national historic site that is controlled by Parks Canada and one that is controlled by Fisheries and Oceans Canada receive different heritage protection? Is that not what the heart of this bill is trying to solve?
Mr. Ostola: You are correct; national historic sites that are under the administration of Parks Canada are afforded protection.
Senator Adams: I asked my question earlier of Senator Carney. Some lighthouses are difficult to get to — or if you want to keep them, they need a heritage designation for people to bring in tourism. We did not expect DFO to put out money every year for them; but people cannot take them over because of the heritage designation — they need special maintenance.
My question is: If you are interested in something like heritage lighthouses, preserving the histories of the families that operated them and things like that, is there some way to move those heritage lighthouses to the city or into the community? Is there any way to do that, or will it cost too much to move them?
We want to save our heritage but nobody can go to see some of the lighthouses that are in remote locations. What is the policy here? When you preserve something that has historical value, people need to be able to see it. If it is somewhere that nobody can get to, what do you do?
Mr. Hegge: As you alluded to, I think it comes down to cost — particularly as a mitigating factor to moving some of these lighthouses. We have moved some lighthouse stations or ancillary equipment, so it can be done. It is a question of cost. It is a question of who pays for those costs; but we would do everything we could to try to accommodate a community interest in this process, especially if we were divesting of the particular lighthouse.
Senator Adams: If you do that, who is responsible for maintaining it? Is it Canadian Heritage, or the city or community to which it is moved?
Mr. Hegge: Again, this responsibility would depend on, in accordance with this bill, whether that particular lighthouse is designated heritage property. In the case of divestiture to a municipality or community, responsibility for maintenance would then come down to the particular costs. As I said, in the past, for a nominal value, we have divested certain lighthouses. However, we do not have the resources to engage in major costs, for example, to move a particular lighthouse at the request of the community.
Senator Adams: I know it takes power, but they do not expect the equipment to operate the way it did before. Every time a tourist comes to visit the lighthouse, they need to put the lights on. However, the big light does not work that way, does it? They do not want tourists to stand too close because the light is bright.
Looking at it from a heritage point of view, will they not have to put the power on in it?
Mr. Hegge: Some lighthouses would be designated as heritage lighthouses that still serve an operational function. In that regard, we would be interested in maintaining the lighthouse so that the operational aspects could continue.
Senator Cowan: Senator Johnson asked my questions. I received the answers I was looking for.
Senator Comeau: Senator Carney mentioned that at the present time there is no method by which these lighthouses can be transferred from the DFO to community groups. That threw me offside a bit.
Mr. Hegge: In accordance with the divestiture policy, if DFO does not have an operational requirement for a lighthouse, we look to other possible needs within the federal government departments and Crown agencies. We look to need at the provincial government level or the municipalities. Failing an interest from one of those parties, we are prepared to negotiate a transfer of a lighthouse for a nominal fee to a third party, for example, a community. A process allows for that, but the process I have described is what we are required to follow in terms of divestiture.
Senator Comeau: You were here when Senator Carney referred to a lighthouse that was allowed to reach the point where the roof leaked or what have you. The local community group wanted to take it over but it could not be done. I forget the name of that lighthouse.
David Burden, Director, Real Property, Divestiture, Fisheries and Oceans Canada: I cannot speak to the specifics of that case, but we have entertained negotiations on a number of our properties. We have come to agreements either for an outright divestiture, a lease of occupancy or a licence of occupancy that allow community groups to take over these properties and maintain them, for alternate use, ecotourism or development of local community.
As has been noted by other people this morning, many of these lighthouses are located in extreme environmental conditions. We have talked about coastal erosion and the severe weather environments that the lighthouses are subject to. As a result, some of these buildings quickly become in a state of disrepair.
For our purposes, we are not funded to invest in facilities that are no longer required for program purposes. As a result, they can quickly become dilapidated.
Senator Comeau: If a building is in the process of leaking or deteriorating, is there a process by which a group can take over a building? I am not looking at this specific case, but is there a process?
Mr. Burden: Yes, there is a process.
Senator Comeau: If this bill were to pass, lighthouses would be designated as heritage by Environment Canada and the Parks Canada Agency. If such designation is made, DFO is still responsible for the lighthouses being reasonably maintained.
Why would a community group want to acquire lighthouse if DFO is required by law to maintain a building reasonably after it has been designated as heritage? Why would any group want to assume the legal requirements and responsibilities of such a building?
Mr. Hegge: The short answer to that question is, I do not think they would.
Senator Comeau: If such is the case, and if DFO is required to maintain the buildings, would you need to seek those funds through your other operational programs, such as diverting funds for patrol boats — that is, putting gas in them — and for staff?
Mr. Hegge: Short of enough funding coming in from the departmental levels, yes, we would need to find other sources for those funds, which would impact our mandate in a big way. The example of the small craft harbours would be one option.
Senator Comeau: I have watched the DFO budgets over the years but these budgets seem to receive the least attention from the finance minister. I suspect the lack of attention has a lot to do with the fact that coastal communities are somehow far away from Ottawa. Officials view these areas as not being highly populated. The political pressure that these members can bring to bear for increased funding has been not adequate, historically.
I guess you cannot assume what a future government would do, but would you then need to seek these extra funds above and beyond your operational needs? If you cannot get them, you would need to use operational funds?
Mr. Hegge: Yes, we have looked at this. We have costed it out based on various scenarios that my colleague from Parks Canada spoke to. We are absolutely convinced that we do not have any flexibility within the existing reference levels of this department. You are right in your summary of the two options. Either we would receive new funding from the government or funding would be at the serious expense of other existing programs. We would rob Peter to pay Paul, to use that expression.
Senator Comeau: The worst-case scenario is that capital outlay over five years to put this bill into play would be $364 million, plus $28.5 million per year thereafter?
Mr. Hegge: As you say, that is the worst-case scenario.
Senator Comeau: You are expecting the next-case scenario, which is $234 million in capital outlay and $18 million a year.
Mr. Hegge: That is correct.
Senator Comeau: I would like to return to the question of ownership. I want to be absolutely sure that those lighthouses that have been divested at the present time would not have any legal obligations under this bill. This bill would not empower Environment Canada to designate these buildings, or would it?
Mr. Ostola: You are referring to the ones divested by Fisheries and Oceans Canada. I believe that the bill would, but I will defer to my colleague.
Ms. Kell: Under the Constitution, the federal government has a power relating to lighthouses, so any structure that is used as an aid to navigation is subject to that federal jurisdiction. Lighthouses that had been divested and that would normally fall under provincial property law would, for the purposes of this navigational power, fall under federal jurisdiction. The bill is ambiguous but it would appear that those lighthouses that have been divested but continue to have a light in them would be subject to the bill.
Senator Comeau: A group that assumed the ownership, maintenance, ongoing routine repairs and so on, of a lighthouse under conditions of the past would suddenly find themselves faced with a building that is now a heritage building and subject to legal requirements that it be maintained in a reasonable fashion?
Ms. Kell: Yes; that is a possibility.
Senator Comeau: A certain amount of retroactive responsibility is being imposed?
Ms. Kell: As for all lighthouses, they would be evaluated and would require a designation. There would be an action that occurred subsequent to the passage of the bill, which they would be made aware of. Yes, the conditions under which they acquired the building would change.
Senator Comeau: The only way that buildings would not be subject to this law in the future is if DFO has absolutely no use for them at all, other than as a building?
Ms. Kell: That is correct.
The Chairman: I wish to clarify a couple of things.
First, you have given us scenarios, and as such they have no substance at the moment. Shakespeare created some scenarios, too. His were imaginary; yours are based on the crunching of numbers at various stages, but they are scenarios. There is nothing to say that the scenarios will happen.
Second, the minister has the final authority. As I understand it, under this act the minister is the boss. The buck stops with the minister. I have sat around the cabinet table as a minister and I know that ministers protect their budgets carefully. The Minister of Canadian Heritage and the Minister of Fisheries and Oceans both sit around the table. If the Minister of Fisheries and Oceans feels threatened, the minister quickly goes to the Minister of Canadian Heritage to make the concerns known.
First, you have presented us with scenarios that have not been established one way or another. Second, as I understand it, there is ministerial authority in the bill in the final analysis. The minister of the cabinet has the final say. I know that the minister hears presentations and I know that the minister consults, but the buck stops with the minister, does it not?
Mr. Ostola: My sense is the minister would be responsible for designating.
Ms. Kell: Under the bill, the minister does not designate. The minister makes recommendations to the Governor-in- Council, who would designate. On issues of alteration the minister has the authority to authorize or not.
The Chairman: That authority is even higher. The whole cabinet or a committee of cabinet eventually decides. The matter must go before full cabinet. It is important for members to understand that. First, we do not have costs: we have scenarios. Second, the cabinet is the final authority.
Senator Carney: One witness referred to the Auditor General's report. I recall that the Auditor General slammed the government for not preserving our heritage, accusing the government of being in grave default with regard to heritage protection.
Second, the figure of 750 lighthouses is totally in contrast with the DFO's own figure of 583. There are only so many light stations, and I accept the DFO estimate.
Third, Senator Comeau's efforts to maintain that a process is in place to dispose of lighthouses to community groups flies in the face of the case of the Point Atkinson light, for which there is no way of disposing of it. In my experience on Saturna Island, without anyone knowing about it, the property was offered by DFO to Parks Canada. The people in the community found out that the park was now owned by Parks Canada when they read it in the newspaper. There was no consultative process.
I believe that on-the-ground experience such as with the Point Atkinson light trumps speculation here in Ottawa.
Senator Watt: I want to pursue the point I raised earlier.
Mr. Tapley, is Bill C-220 flexible enough, after the minister has made a decision on what will happen to the lighthouses, to provide partnering that will allow community input to Fisheries and Oceans Canada?
Is it also flexible enough to allow the community to enter into a management contract on behalf of DFO?
Mr. Tapley: Respectfully, I think I should defer to my colleagues at DFO.
Senator Watt: This question could also apply to Parks Canada.
Mr. Hegge: In terms of partnering, if you are talking about joint ownership, that would probably be problematic.
Senator Watt: I am trying to keep it broad.
Mr. Hegge: In terms of divesting a lighthouse with regard to which we have no operational requirement to a third party or community, one requirement may be that the light is kept on because it still serves an operational purpose. In that regard, we have had a memorandum of understanding or a partnership. We would look at any reasonable approach along those lines.
Mr. Burden: As was mentioned earlier, we have divested a number of lighthouses and we are working actively with various community groups. It was also pointed out earlier this morning in other testimony that each situation with lighthouses is a little different. It is a little different because of the ownership of land. In certain circumstances, particularly on the West Coast, we do not own the land. There are reversionary clauses that are subject to the land. That makes it challenging for us to divest, transfer or come up with an agreement to move a lighthouse or facilities related to a lighthouse to a community-based group.
My team is currently working on approximately 15 to 20 active files, primarily on the East Coast, to make that type of arrangement. As we have indicated, we have transferred a number of other facilities across the country. When we have lands, particularly in Newfoundland and Labrador and B.C. that are subject to these reversionary clauses, the provincial government must be on side and a party to the transfer. This agreement takes an excessive amount of time, which delays the process.
Mr. Tapley: I can address your question from a Parks Canada perspective, albeit looking at contemporary facilities. There have been instances where Parks Canada no longer has a need for a contemporary facility, whatever it may be — a building, a waste treatment plant or whatever. We have been able to negotiate with third parties to take over responsibility for the ownership and maintenance of those structures.
Often, it is possible to obtain a special authority from the Treasury Board that allows us not to sell it for fair market value but for a nominal sum, usually one dollar. This bill does not fetter that opportunity at all.
Our concern is that if the obligation were to fall on our colleagues at DFO or ourselves to maintain a designated heritage lighthouse in a reasonable fashion, there likely would not be a motivation for a third party to take it over if it is already being cared for in an extraordinary fashion by the federal government.
By the same token, a group that is contemplating taking over a lighthouse and perhaps trying to exploit its economic potential as a community landmark or as a local historic site may look at that obligation for maintenance, think it may incur a great deal of cost, and decide not to take it over.
The Chairman: I want to thank our witnesses for appearing this morning. They have been helpful.
Senators, it is now my intention to proceed to clause-by-clause consideration. Is that agreed?
Hon. Senators: Agreed.
Senator Comeau: Might the officials stay? If there are amendments proposed, we might have further questions of them.
The Chairman: Absolutely.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 2 carry?
Senator Comeau: The day before yesterday I received the possible amendments to the bill. Yesterday I took the opportunity to have the Senate legal staff put the amendments into legalese. I have not yet had a chance to check the legalese, but our legal people are good at this.
If you will bear with me, I want to ensure that I do not miss any amendments.
The Chairman: Does everyone have copies of the amendments?
Hon. Senators: Yes.
Senator Comeau: I move the amendment to clause 2 found on pages 1 and 2 of the bill.
The Chairman: Has everyone had a chance to look at the amendments to clause 2?
Senator Baker: Which line are we talking about on page 2?
Senator Comeau: It is after line 22.
Senator Baker: It is a new definition right at the beginning, before ``alter.''
Senator Carney: I wish to establish something. First, I have worked out amendments with the law counsel of the Senate. I am not sure whether they are the same as the ones being presented. I have dealt with our counsel and the draftee. Second, I have worked out amendments with the Department of the Environment, which is the responsible department, so I do not know which department has presented these amendments. I do not want to prolong this process, but the Minister of the Environment, who is responsible for Parks Canada, is the one with whom I have dealt. I want to ensure that the amendments we have worked out with the minister are the ones presented.
Senator Comeau: I received a note from Tracy Bellefontaine the day before yesterday that included a copy of a letter that Senator Carney sent to Rona Ambrose, which refers to a number of recommended amendments. Therefore, I assume the amendments come from the Ministry of the Environment.
Senator Johnson: That was from me, senator. I forwarded it to you.
Senator Comeau: It refers to Mr. Robert Serpe, special assistant to Minister of the Environment. These are the amendments I submitted for legal writing.
The Chairman: As I understand it, we have two sources of amendments. One is the Senate law clerk and the second is the Minister of the Environment. Is that correct?
Senator Comeau: Unless we have two from the law clerk.
Senator Cowan: Perhaps we should take a break to allow Senator Comeau and Senator Carney to compare notes to see if we are talking about the same set of amendments.
The Chairman: That is a good idea.
The committee suspended.
The Chairman: Is it agreed that we stand clause 2?
Hon. Senators: Agreed.
The Chairman: Is there any amendment to clause 3?
Senator Comeau: I move the amendment.
Senator Carney: The amendment does not make sense to me. It says replacing with the following: ``nation of heritage lighthouses.'' That does not make sense to me; and, ``(b) preventing the unauthorized alteration or disposition of heritage lighthouses.''
Let us be clear. This amendment I have before me would change the purpose and application of the act. I am in the hands of the clerk for this. The existing clause reads:
The purpose of this Act is to preserve and protect heritage lighthouses by
(a) providing for the selection and designation of heritage lighthouses;
(b) preventing the unauthorized alteration or disposition of heritage lighthouses; and
(c) requiring that heritage lighthouses be reasonably maintained.
According to this amendment, that clause would be replaced with something that does not make sense. I do not understand what ``nation'' means.
The Chairman: I do not understand either, what ``nation of heritage lighthouses'' means.
Senator Carney: I suggest that we keep ``The purpose and of this Act.''
Ms. Kell: I think the end of the word ``designation'' of heritage lighthouses is under (a), and the changes all in the (b) part.
Senator Comeau: May I, Mr. Chairman?
The Chairman: I see. It is not ``nation of heritage lighthouses,'' it is ``designation.''
Senator Comeau: There is absolutely no attempt whatsoever in these amendments to change, alter, improve or disapprove of anything Senator Carney had sent to us through a letter that I received the day before yesterday. We physically took those, all the recommendations and sentences that Senator Carney had compiled. We headed over to the law clerk and said, ``Would you please put this information into legal text?'' There is no attempt whatsoever to change anything that Senator Carney had.
The Chairman: Except that (b) is changed. Clause 3(b), which reads:
(b) preventing the unauthorized alteration or disposition of heritage lighthouses;
which would be changed to
(b) regulating the alteration, disposition and maintenance of heritage lighthouses.
Senator Comeau: Yes, it has changed, as agreed to by Senator Carney and departmental officials.
The Chairman: Is that agreed?
Senator Carney: No, we never discussed that in any paper I have. The first thing that is discussed by the department is aids to navigation, which is the next thing we talk about. This is on page 2.
The Chairman: We are on amendment —
Senator Carney: We have to do this. We have two choices. We can keep clause 3(b) as it is, or amend it to read ``regulating the alternation, disposition and maintenance of heritage lighthouses.'' If you think it has the same meaning, we can accept it.
Senator Baker: There is a little bit of a substantive difference in that the word ``reasonably'' is inserted in the original section; ``reasonably maintained.'' Clause 3(c) is also replaced; (b) and (c) are replaced. The words ``reasonably maintained'' are not included in the amendment, and the same thing applies to another qualifying word prior to that. Senator Carney is right. We have a choice.
Senator Carney: We can keep to the original purpose. I have not seen this amendment and we have never discussed it.
Senator Comeau: May I please come back? I took what was in good faith a letter I received from Senator Carney the day before yesterday. I did not alter, change or amend in any way, shape or form the agreements that had been arrived at by Senator Carney and the department. I handed these over to the clerk. I handed these over to the legal counsel. I said, ``Would you please put these in legalese?'' I gather now that she is saying that those recommendations were not agreed to, or that somehow the legal people have misinterpreted or wrongly interpreted the documents I sent to them.
I wish to have these comments on the record.
The Chairman: That is understood. It change this clause, Senator Baker says, because ``reasonably maintained'' is not there.
Ms. Kell: We have not been through the full package of proposed amendments, but I suspect that because this clause speaks to what will come in the bill — these are not requirements, this clause sets out the purpose of the bill — and amendments proposed later will take out authorization that clause 3(b) was changed.
Senator Baker: What about clause 3(c)?
Ms. Kell: I think the intention is that clause 3(c) would remain unchanged.
Senator Baker: You have to insert the word ``reasonable'' in the amendment.
The Chairman: That is not what the amendment says. The amendment takes out clause 3(b) and clause 3(c) and replaces it with a new clause 3(b).
Senator Baker: That is quite a difference.
The Chairman: Yes, the situation, as I understand it, is clear. As Senator Baker pointed out, the difference is ``reasonably maintained.'' We have a choice, senators, before us on this amendment to accept it or not. My understanding is that Senator Carney would not like to accept the amendment.
Senator Carney: No, I would not.
The Chairman: Let me put the question then on this amendment. Are honourable senators ready for the question?
Some Hon. Senators: Question!
The Chairman: Shall the amendment carry?
Some Hon. Senators: No.
Senator Comeau: Yes, sorry.
The Chairman: The amendment is defeated. Shall clause 3 carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chairman: Carried. Clause 4, the amendment reads:
This Act applies to lighthouses that are the property of Her Majesty in right of Canada.
That is a change from
This Act applies to lighthouses within the legislative authority of the Parliament of Canada.
Senator Carney: We agree to this amendment.
The Chairman: Okay.
Senator Carney: As long as it is clear, it is because the lighthouse is federal.
The Chairman: Shall the amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 4 carry as amended?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried. We turn now to clause 6.
Senator Comeau: There is an amendment.
The Chairman: There is an amendment. The amendment is
That Bill S-220 be amended in clause 6, on page 2,
(a) by replacing lines 33 and 34 with the following:
``6.(1) The Minister may, at any time, taking into account the established criteria,'';
That would replace
6(1) The Governor in Council may, by order, on recommendation of the Minister, designate a lighthouse to be a heritage lighthouse for the purpose of this Act.
What does that do?
Senator Baker: It gives the minister the authority.
The Chairman: It gives the minister the authority rather than the Governor-in-Council?
Senator Carney: We agree to that, but not the next part.
Senator Comeau: Carried.
The Chairman: The amendment for the next part reads
(b) by replacing line 38 with the following:
``include any related building that the Minister considers should be included in the designation, taking into account the established criteria.''.
That would change from
include any related site or structure.
Senator Carney: We had agreed to make it ``built structure,'' and that was the amendment I was expecting.
Senator Baker: Is that instead of ``building''?
Senator Carney: No, ``related site or built structure.''
The department said the term ``structure'' is vague, and the term ``building'' is consistent with other federal legislation. My answer was that ``building'' does not include those factors of a light station which include helipads, winches and life boats — things that are built. The minister's special assistant, Robert Serpe, agreed to ``built structure'' because that wording narrows it.
The Chairman: If we changed the amendment to ``include any related built structure,'' would that solve the problem?
Senator Carney: Yes.
Senator Cowan: Why not say ``building or structure''?
Senator Carney: No, they did not like ``structure''; they felt it was too vague. A structure could be a natural structure or various other things. The minister's office agreed to ``built structure.'' I want to keep to the rules to which we agreed.
Senator Comeau: Mr. Chair, we have representatives of the department here. If the department has agreed to Senator Carney's suggested wording, we would have no problem with it.
Can we hear from them on this?
Mr. Ostola: We know work has been done on amendments at the level of the minister's office, but we are not aware of the final conclusions.
Senator Comeau: Amendments were prepared at the minister's office?
The Chairman: I saw a letter from Minister Ambrose relating to this wording.
Senator Comeau: I do not have it.
Senator Carney: Would you take my word that we agreed to this, Senator Comeau? It accommodates the concerns of the department and the realities of light stations. Could you accept my word?
Senator Comeau: No: Although I have not talked to the minister's office, I heard that the department had problems with this wording. Therefore, I am not sure if I am prepared to accept —
Senator Carney: It is in your hands, Mr. Chairman. This agreement has been made by the department.
Senator Comeau: Can we return to this one?
Senator Carney: No, it is twelve o'clock.
Senator Comeau: Don't I know it.
The Chairman: Order, please. My understanding is that the minister will accept ``built structure.'' I do not have it before me, but I saw a letter from the Minister of the Environment to that effect.
Senator Carney: The agreement with the minister's office is subsequent to this letter, because this wording has been under negotiation for some time.
The minister's office and I have agreed on ``built structure'' to cover light stations. My word was not suitable to them.
Senator Baker: Mr. Chair, I move:
That the word ``building'' be replaced by the words ``built structure'' in the amendment suggested by Senator Comeau.
We should deal with that amendment to his amendment first.
The Chairman: The amendment would read:
(b) by replacing line 38 with the following:
``include any related built structure that the Minister considers should be included in the designation, taking into account the established criteria.''.
Shall the amendment carry?
Senator Comeau: No.
Senator Baker: Agreed.
Senator Comeau: On division.
The Chairman: Shall the amendment as amended carry?
Some Hon. Senators: Carried.
Senator Comeau: On division.
The Chairman: Shall clause 6 carry?
Some Hon. Senators: Carried.
The Chairman: Carried, on division. We are now on clause 7.
Senator Comeau: To my understanding, the amendment is simply to renumber the clauses.
The Chairman: Are there any comments, senators?
Senator Comeau: I so move.
Senator Carney: I do not understand. It says ``in clause 7 on page 3 by deleting lines 1 to 10.''
Senator Comeau: I am sorry.
Senator Carney: We would be deleting:
The Minister may, at any time, taking into account the prescribed criteria,
(a) consider whether a lighthouse should be designated as a heritage lighthouse and whether any related site or structure should be included in the designation; and
(b) make a recommendation to the Governor in Council. . . .
The Chairman: The law clerk has joined us. Would senators agree to have him come to the table to assist us?
Senator Comeau: That is a good idea.
Senator Carney: I might be able to solve this problem.
The Chairman: Mr. Audcent, please join us anyway so that we can ask your advice if we so desire.
Senator Carney: We are dealing with clause 7(b). The agreement was that we would allow the minister to establish the criteria rather than the Governor-in-Council. Saying ``make a recommendation to the Governor in Council'' —
Senator Baker: It is redundant to what we have done.
Senator Carney: The law clerk will have to tell us that. At some point we have to give the minister the power to —
The Chairman: Mr. Audcent, do you want to comment on that? We are dealing with clause 7 and an amendment which reads as follows:
THAT Bill S-220 be amended
(a) in clause 7, on page 3, by deleting lines 1 to 10; and
(b) by renumbering subsequent clauses and any cross-references thereto accordingly.
As I understand it, that essentially deletes clause 7.
Mark Audcent, Law Clerk and Parliamentary Counsel: I agree that the purpose of that amendment would be to delete clause 7.
Senator Carney: Senator Comeau says that these recommendations come from your office, Mr. Audcent. They are not the same as the ones that came from your office. We should clarify the ownership of these recommendations.
Mr. Audcent: I have heard that the committee has been advised that Senator Comeau has received his amendments from my office. As counsel to the Senate, we can receive instructions from any one of 105 senators. We do not share instructions from one senator with another. We could not possibly do that as it would put us in a conflict of interest. It is up to senators to exchange information.
We had two sets of instructions, the original ones being from Senator Carney. Both senators were working from the same document. Senator Carney had a selected number of amendments that she wished to accommodate. Senator Comeau's agenda was to accommodate the entire document. The two packages were drafted to meet the instructions we received from the particular senators. Working on the entire document, as Senator Comeau wished to do, required that some things be drafted differently. That is why there are differences in the approaches.
Senator Baker: Is clause 7 being removed because the power to designate by the minister is referenced in detail in clause 9 and clause 8 to follow, and that clause 7 would be redundant? We have dealt with clause 6.
Janice Tokar, Legislative Drafter, Office of the Law Clerk and Parliamentary Counsel, Senate of Canada: I am not sure which package you are using. The deletion in clause 7 is related to the amendment of clause 6. I need to see the amendment to clause 6 that was carried, to be sure.
Senator Baker: Clause 6 replaces ``Governor-in-Council'' with ``the minister.''
Ms. Tokar: That is fine. Clause 6 originally dealt with the Governor-in-Council making the actual designation on the recommendation of the minister. Clause 7 dealt with the minister deciding whether he or she should recommend to the Governor-in-Council. We have now amended clause 6 to get rid of the reference to Governor-in-Council. Clause 6 now says the minister makes the designation.
As such, clause 7, as it exists, is no longer required because we have shifted the designation in clause 6 from the Governor-in-Council to the minister. Clause 7 was serving the purpose of the minister deciding whether to recommend. The way you have amended clause 6, clause 7 is no longer required.
The Chairman: The amendment to clause 6 makes clause 7 redundant.
Senator Carney: That is consistent with our agreement with the department?
Ms. Tokar: That is correct. That amendment is in your package as well.
Senator Carney: I no longer have my package from the law clerk. I do not have a copy of my own recommendations. I have only the ones that came from Senator Comeau. I do not believe that any member of the Senate has been given copies of the amendments that you made for us.
The Chairman: As I understand it then, because of the amendment to clause 6, clause 7 is unnecessary and redundant. Is that right?
Senator Baker: Which is what I said.
The Chairman: Is that generally agreed?
Senator Baker: Agreed.
The Chairman: We need to delete clause 7 then. The motion is to delete clause 7: is that right? What I will call for now is, shall clause 7 carry, and I expect the answer ``no.'' Is that agreed?
Hon. Senators: Agreed.
The Chairman: Clause 8, does someone want to speak to the amendment?
Senator Comeau: I will repeat it one more time. I simply took the agreements, as arrived at between the department and Senator Carney, and passed them over to the law clerk.
The Chairman: That is understood. Let us hear from the law clerk to help us clarify clause 8.
Ms. Tokar: One thing I might say, the amendments fit together with changes that were made in clause 2. Has clause 2 been dealt with?
The Chairman: No, it has not.
Ms. Tokar: All right. In the government's recommendation package, which we drafted for Senator Comeau, one of the objectives was to no longer have the criteria prescribed by regulation but rather to have them established by the minister. Certain changes were made in clause 2, to accommodate that change.
As well, the recommendations from the ministry's office that we dealt with wanted to change the word ``related site or structure'' to ``related building.'' These are things that happen partially in clause 2 but are carried over in various clauses of the bill. What you are seeing in clause 8 reflects that we now have established criteria instead of prescribed criteria.
The Chairman: Would it be best to revert to clause 2 now?
Senator Carney: Yes, because it is fundamental to the rest of the act.
The Chairman: Is it agreed that we revert to clause 2?
Senator Baker: Agreed.
Senator Carney: The amendment would add the interpretation of ``advisory committee.'' We are adding a new definition. We are adding that:
``Advisory committee'' means the advisory committee established by the Minister under section 9.1.
The reason for that addition is that the department has argued, and I agree, that we should have a separate advisory committee to advise the minister on lighthouses rather than task the national board of sites or monuments. I agreed with that suggestion: it is a good idea. We are adding the definition of advisory committee, which we agree to.
Replacing line 3 with the following:
``this Act, and includes any related site or,''
That wording is not in contention, is it?
Ms. Tokar: I need to verify that. We have talked only about clause 8(a)(i) which is advisory committee, and then I have established criteria, the criteria established by the minister. Is that the amendment we are working from?
Senator Carney: No: Page A.
The Chairman: The problem, as I understand it, is that two people asked the law clerk for advice on wording. The law clerk responded to each senator, but according to the request from the senator. Therefore we have two different sets of wording before us. That is causing some problems.
Senator Carney: Could we go on? I think we are making progress.
The Chairman: All right: I would love to make progress.
Senator Carney: I am asking Ms. Tokar because she is working from two documents. I had asked for the amendments and did not get them. On page 2 of the bill, line 3, this act ``includes any related site or:'' is that in contention?
Ms. Tokar: No, it is not.
Mr. Audcent: If there has been a problem I deeply regret it, but those amendments were faxed to Senator Carney's office last night.
The Chairman: She did not see Senator Comeau's amendments.
Mr. Audcent: No, she did not.
The Chairman: As I said before, that is our problem. We have Senator Comeau's amendments and we have Senator Carney's amendments. They are not the same. As a committee we are trying to go through clause by clause.
Senator Comeau: I would like the law clerk to clear this up. What I handed over to the law clerk are not the same amendments. I received those amendments the day before yesterday and I think I handed them over to the law clerk's office yesterday. Why would they be different from Senator Carney's? I received them from Senator Carney.
Ms. Tokar: I suppose I should first ask for permission from both Senator Carney and from Senator Comeau to speak.
Senator Comeau: Sure.
The Chairman: Be open, transparent and accountable.
Ms. Tokar: Thank you. Both sets of amendments have arisen from a document of 10 recommendations. To my knowledge, a colleague of mine received a request late Monday afternoon from either Senator LeBreton's office or Senator Comeau's office to prepare amendments that reflected those 10 recommendations. We were working on numerous different scenarios with Senator Carney, but our final instructions were to prepare amendments for recommendations 1, 4, 5 and 7, as well as a change to the word ``built structure.'' Although the genesis is still these 10 recommendations, the instructions from one office were to do all 10 of them.
Senator Comeau: That was my office.
Ms. Tokar: Your office instructed us to do all 10 as were there. I should say we received some assistance on recommendation 9. This assistance came through Michel Patrice. For Senator Carney, again using the same recommendations, we were asked only to change the bill based on four recommendations plus the concern about ``built structure''. There are many more amendments in Senator Comeau's package and those have branch effects all throughout. That is why the documents look different. I cannot speak to what was agreed to or not agreed to. I can only say that we received two streams.
Senator Carney: I will add to that. I have never seen the amendments. The 10 points that I received were not amendments to the proposed legislation; they were intent. I could not agree so I suggest we continue. I am taking Senator Comeau at his word that he did not intend to undermine the agreements made by the —
The Chairman: Is it agreed that we proceed with the amendments as requested by Senator Comeau? We need to deal with a text.
Senator Carney: We will deal with a text and then I can point out whether they reflect the agreement, in fact.
The Chairman: Let us deal with the text from Senator Comeau, and we will modify it as required.
Senator Carney: We are on clause 2.
The Chairman: That is right. Could the law clerk assist us by advising us on the difference these amendments make to clause 2?
Ms. Tokar: The first change, which is at line 22, adds a definition of ``advisory committee,'' the intent of which is to replace ``board'' with ``advisory committee.''
For ``established criteria,'' one of the recommendations was not to have prescribed criteria but rather to have the minister establish criteria. That instruction was received from Senator Comeau's office, not from Senator Carney's office.
The Chairman: Is that okay?
Senator Carney: Yes, I think one issue is a translation problem. In French it says ``regulation.''
Ms. Tokar: The next would be a deletion of the definition of ``board,'' which is being replaced.
The Chairman: Yes.
Ms. Tokar: On page 2, the instructions were to replace the concept of ``related site or structure'' with ``related building.'' This instruction is from Senator Comeau, not Senator Carney.
The Chairman: Is that agreed?
Senator Carney: No, ``built structure'' is what the department and I agreed to.
The Chairman: The last part of clause 2, as I understand it, should read: ``related site or built structure.'' Is that right?
Senator Carney: Yes.
Senator Comeau: Senator Carney says that she has agreement with the minister. I am not privy to any discussions with the minister. My understanding from the department was that it had not agreed. I have not talked to the minister, mind you, but the department had not agreed to ``built structures'' or whatever.
Senator Carney: It was the compromise agreed to by the minister.
Senator Comeau: Apparently, I am not privy to any such agreement. Therefore, I cannot accept this —
Senator Baker: If I could make a motion that in each instance where ``building'' appears the words ``built structure'' do replace it.
The Chairman: There is a motion by Senator Baker. Is it agreed.
Senator Comeau: No.
Senator Cowan: Agreed.
Senator Comeau: I would like a recorded vote on this.
The Chairman: Senator Baker moved that where the word ``building'' appears in the bill, it be replaced with the words ``built structure.''
Senator Hubley: I want to clarify something. In clause 6, we agreed to ``built structure.'' Is that correct?
The Chairman: Yes.
Senator Baker: I move that ``built structure'' replace the word ``building'' in clause 2.
Senator Cowan: If we change ``built structure'' in one place, we need to be consistent; I agree with that. As I said before, the term ``built structure'' does not make sense to me. If you talk about a building or a structure, that makes sense. I understand. Structure is something added.
Senator Carney: It is a recognized planning term. It means something that is built but it is not a building.
Senator Comeau: It can include —
Senator Cowan: Does it include a building?
Senator Comeau: It can be a loading dock, boat launch, heli-pad, road, bridge or virtually anything on the site. Whereas, a building could be the lighthouse or the light keeper's building. Built structure is virtually everything.
Senator Cowan: Going back to the point, I accept that. If the minister and her staff have agreed to the term ``built structure,'' it seems to be appropriate that we have consistency throughout. For that reason, I support that amendment.
Senator Comeau: I am not privy to any discussions between the minister and Senator Carney.
Senator Baker: Another senator attests to the fact that the minister agreed to this wording.
The Chairman: There is a motion from Senator Baker.
Ms. Tokar: May I ask for clarification? The bill currently says, ``related site or structure.'' The amendment had changed that to ``related building.'' Are we then changing it to ``related built structure?''
Senator Carney: Related site or built structure is what the minister and I agreed to, to accommodate the west coast.
The Chairman: Do you see a problem?
Ms. Tokar: I seek a point of clarification.
Senator Johnson: We have already amended it once.
The Chairman: There is a motion from Senator Baker. Shall the motion carry?
Senator Baker: Agreed.
Senator Cowan: Agreed.
Senator Johnson: Agreed.
Senator Hubley: Agreed.
Senator Comeau: No.
Senator Watt: Agreed.
The Chairman: It is agreed for clause 2. We need to adopt the amendment as amended. Shall the amendment as amended carry?
Some Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 2, as amended, carry?
Senator Cowan: What about the other sections?
Senator Carney: We agreed on that.
Senator Comeau: We agreed.
The Chairman: Shall clause 2, as amended, carry?
Senator Cowan: Agreed.
Senator Carney: Agreed.
The Chairman: We are at clause 8. Are there amendments to clause 8?
Senator Cowan: I want to go back. On the reverse of this page dealing with clause 2, there is a definition of ``related building.'' Has that gone by the board now?
The Chairman: It would have to be ``related built structure,'' I would imagine.
Senator Carney: That is absolutely key to the West Coast light stations, which do not have roads to them,
The Chairman: It becomes ``built structure'' all the way through.
Senator Cowan: I give up. I agree.
The Chairman: I remind all senators that this bill has to pass third reading. There will be sober second thought.
What are the amendments to clause 8? Do all senators have them?
Senator Carney: An amendment was prepared by the law clerk on the advice of the department that wants to speed up this process. It says, ``by replacing line 26'' in clause 8, ``which the minister receives a petition.'' I do not understand the difference with that because it seems to be the same as what is in the bill.
The Chairman: Would the law clerk like to comment on that? It is:
(b), by replacing line 26 with the following:
``which the Minister receives a petition; and''; and
Ms. Tokar: That change only effects the addition of the word ``and.'' We are eliminating paragraph (c), so it only adds the word ``and.''
Senator Carney: I agree with the next one: by replacing lines 30 to 35, that eliminates Governor-in-Council.
The Chairman: Shall the amendment carry?
Some Hon. Senators: Agreed.
Mr. Audcent: Honourable senators, I think Senator Carney is working from the amendments that were prepared for her; and I think you have an agreement to work on the amendments that were prepared for Senator Comeau. Senator Comeau's amendments have additional elements so I think you need to work from them.
Senator Carney: I do not have Senator Comeau's.
An Hon. Senator: What is the difference?
The Chairman: We have gone through that.
Senator Comeau: We might as well visit it again.
The Chairman: We have to get through it. The Senate is sitting and I want to conclude consideration of this bill today.
Senator Carney: We have dealt with it because it says ``with any related buildings'' and we have dealt with built structures.
The Chairman: Senator Carney, so we can adopt that amendment?
An Hon. Senator: Agreed
Senator Carney: I can always deal with this on third reading.
Senator Comeau: Right.
The Chairman: Shall the amendment to clause 8 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chairman: As amended.
Hon. Senators: Agreed.
The Chairman: What are the amendments to clause 9? They are small: ``it has been desig-.'' ``Desig'' is not an English word as far as I know.
Senator Comeau: It has been, it be or something.
The Chairman: Is that agreed?
Some Hon. Senators: Agreed.
The Chairman: Shall the amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 9, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall new clause 9.1 carry?
Hon. Senators: Agreed.
The Chairman: Shall Clause 10 carry?
Senator Comeau: Carried.
The Chairman: Just a minute. Does the law clerk have any comments on this?
Ms. Tokar: Essentially, this version requires consultation with the advisory committee and allows it otherwise —
The Chairman: Senator Carney, are you comfortable with that?
Ms. Tokar: I might point out that the amendment changes the detailed consultation requirements that were there. The board had structured notice and things. This change is leading toward a much more generalized consultation process.
Senator Carney: Which we agreed to.
The Chairman: Shall the amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 10, as amended, carry.
Hon. Senators: Agreed.
The Chairman: Clause 11; does someone want to speak to the amendment?
Senator Carney: Let me see what the amendment is.
The Chairman: Would the law clerk like to comment on the amendment?
Senator Carney: Yes, is there any difference to what we had agreed to?
Ms. Tokar: As I said, the proposals from Senator Comeau essentially will get rid of the detailed, prescribed steps in the legislation for the processes seeking an authorization to alter lighthouses. Instead, the provision will replace the prescribed process with a requirement that it be altered in accordance with criteria and procedures established by the minister.
The difference is we will get rid of all the detailed notice and consultation processes and replace them with procedures and criteria established by the minister.
Senator Carney: Does that change still allow for public consultation?
Ms. Tokar: That will depend on what the minister decides to put into the criteria.
Senator Carney: That is the problem, because I agreed that this process should be simplified. However, somewhere in there, there must be something dealing with public consultation. We have petitions, so we must have public consultation on the basis of the petitions. If we take out a clause which deals with publication — which I agree with — there must be some means when we come to public consultation; and one of these clauses deals with public consultation.
The Chairman: A clause in this bill deals with public consultation.
Senator Carney: If we have a petition, we must have public consultation.
Ms. Tokar: That is for the designation of the lighthouse: we are now dealing with the alteration of the lighthouse.
I have a thought, and it is difficult to do these things on the fly. We have the requirement, in clause 18, for the minister to establish criteria. If I have a moment to think — if it was agreed to and desired — perhaps we could put in some sort of qualifier saying that those procedures, ``including procedures for public consultation.''
Senator Carney: That would be fine.
The Chairman: Is that agreed?
Senator Baker: You already have established that under clause 18(b) — that is where the public consultations are, in clause 18(b).
Ms. Tokar: That is where the minister is required to establish criteria and procedures.
Senator Comeau: Clause 13, by the way?
Senator Baker: Public consultations are in clause 18(b); your amended clause 18(b) — criteria and procedures, alterations, national standards, conservation, heritage properties — that is in your amendment to 18(b).
Senator Comeau: And under clause 13 as well, where there is the —
Senator Carney: When we get to clause 18(b), let us do what the law clerk suggests.
The Chairman: Okay, but we need to move this amendment to clause 11. Is the amendment agreed?
Senator Comeau: Agreed.
Senator Carney: ``Heritage lighthouse, or any part of it, may only be altered in accordance with the criteria and procedures established under paragaph 18(b).'' Let us make sure there is a clause 18(b).
The Chairman: Shall the amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 11, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Who would like to speak to the amendment to clause 12?
Senator Carney: I have not seen it yet. In many cases, the information I received from the minister's office was intent, not legislation, so let us look at clause 12.
The Chairman: Would the law clerk like to comment on that?
Senator Carney: What are the differences?
Ms. Tokar: Essentially, the clause deals with transfers and sales. It requires a notice ahead of time. In terms of selling a lighthouse to a party other than a municipality, it requires a public meeting on the issue in the local area.
Then subclause (3) requires that if there is a transfer of the lighthouse, that some provisions be made for protecting its character by means that the minister may authorize. I believe that protection might include things like including certain clauses in any legal transfer document that would put certain obligations on the future owners of that lighthouse.
Senator Carney: I am not sure. It reads, at present:
A person may apply to the Minister for authorization to remove, alter, destroy, sell, assign, transfer or otherwise dispose of a heritage lighthouse or part of the heritage lighthouse.
Then it describes how you do that.
All of a sudden, this new provision introduces something I have not ever even discussed. It ``may only be transferred into Her Majesty in right of a province.'' This bill already deals with federal jurisdiction only. I do not understand why a province has been included, and why the concept of a sale to a municipality has been introduced. It has never been discussed in any of the issues that I have from the department.
The Chairman: Is it not the regular practice that the province gets first right of refusal on federal properties? Is that what we are talking about here?
Senator Carney: There is intent to consult with the province.
The Chairman: To dispose of a federal property, the first person the department asks if they want it is the province, and the second person to ask is the municipality. If they both turn it down, then the department can go to the public, right? That is the procedure.
Senator Carney: Yes.
The Chairman: For all federal properties?
Senator Carney: Yes: My point is, this provision completely replaces the application for authorization. A person may apply to the minister for authorization.
The Chairman: A person may apply only if the province has right of refusal and the municipality has right of refusal. That is policy.
Senator Carney: It does not give any specific statement that it must go to the public. It replaces a general application that a person may apply to the minister, which could be a local group: that is why I am so insistent. This could be the West Vancouver Historical Society, and nothing in this new amendment permits that.
The Chairman: As I read this amendment:
12.(1) A heritage lighthouse, or any part of it, may only be transferred to Her Majesty in right of a province or sold if a notice is published at least 90 days —
Senator Carney: I do not disagree with that. I am saying there is nothing in this clause which then permits —
The Chairman: That is in other parts of the bill, is it not?
Senator Carney: No: To apply for a community group.
The Chairman: Can the law clerk comment on that?
Senator Carney: You have replaced a person with a province or municipality. I want a person in there.
Ms. Tokar: Generally, the government recommendations were to get rid of clauses 11, 12, 13 and 14 — all the specific application procedures for specific authorizations every time someone wants to alter or transfer a lighthouse. On the recommendations dealing with transfers and sales, we received a draft from the department, I believe. I hope I have the right thing on this particular topic. I assume from that, and based on my review of what the recommendations said, their draft reflected their recommendations. I am not saying that is what you saw or whether you agreed with those.
You are correct. All that is left here is a notice provision for an intent to sell.
Senator Carney: Under clause 15(2) it says:
Before making a recommendation under subsection (1), the Board
(a) must give all interested persons a reasonable opportunity to make representations concerning the application; and
(b) may sponsor a public meeting. . . .
I suggest that when we reach clause 15 we keep that and then adopt this. As long as it is clear that there has to be some clause that permits the transfer to the public. Think West Vancouver Historical Society.
The Chairman: Are we ready to adopt the amendment to clause 12?
Senator Carney: Yes.
Senator Baker: Mr. Chairman, is the 90 days referenced in any other future clause that we are about to deal with? Do you recall?
Senator Carney: Yes, it is.
Ms. Tokar: Dealing with the sale?
Senator Baker: Yes: Is the 90 days referenced in any future clause?
Ms. Tokar: It is not, to my recollection.
The Chairman: Are we ready to adopt the amendment to clause 12? Shall the amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 12 as amended carry?
Hon. Senators: Agreed.
The Chairman: Carried. Who would like to speak to clause 13? Senator Carney, have you had a chance to look at that? It looks to me like it is much the same.
Senator Carney: Yes, I think it is simpler. It says:
(1) A heritage lighthouse, or any part of it, may only be demolished if there is no reasonable alternative and if a notice is published at least 90 days before the demolition. . . .
It does not apply in respect of the demolition of a heritage lighthouse. That is correct. This provision assumes that a public association can buy a lighthouse.
The Chairman: Are we ready to adopt the amendment to clause 13?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the amendment to clause 13 carry?
Hon. Senators: Agreed.
The Chairman: Carried. In clause 14, the amendment deletes lines 15 to 32, by renumbering — I assume this amendment is because of the changes we made to clause 2; is that right?
Senator Carney: Yes. Just look what you are doing. I need advice from the law clerk on this. Clause 14 would delete lines 15 to 32; the whole clause would be deleted. This clause deals with the issue that
(1) If no notice of objection to the application for authorization is served. . . the minister may
by order, authorize the removal, alteration, destruction, sale, assignment, transfer. . .of the heritage lighthouse. . .on such terms. . . .
In the way we have amended this bill, we may wish to keep the right of the minister to demolish a building should it be necessary. Could I have some comment on that?
The Chairman: My understanding is, because of changes we made earlier, clause 14 is now not necessary. Is that right?
Senator Carney: Nowhere in the bill does it say the minister has the right to dispose of a building. It says the department can, for emergencies.
Ms. Tokar: Essentially, these procedures in clauses 11 to 16 were detailed procedures on disposition, transfers and alterations. Those have been replaced by: Alterations are now based on criteria by the minister and procedures established by the minister.
Transfers are dealt with, with a 90-day notice period. Demolitions can be done if there is no alternative, with a 90- day notice. All this has been replaced by, as I say, alterations, criteria by minister, demolitions —
The Chairman: So we do not need clause 14, is what you are saying.
Ms. Tokar: If you accept the idea of streamlining this bill and simplifying it, these are gone.
Senator Carney: I am trying to find out where the minister is given the authority to do that.
Ms. Tokar: To demolish?
Senator Comeau: The minister has that under existing legislation.
Senator Carney: I want to know if it is in this bill, because this is what we are working on.
Ms. Tokar: The clause 13 amendment —
Senator Comeau: I take it back.
Ms. Tokar: The clause 13 amendment said that the heritage lighthouse ``may only be demolished if there is no reasonable alternative.''
Senator Carney: I take it we are on clause 14. You feel that this is redundant: that the right of the minister to destroy a building, under conditions, is still kept so we can remove this?
Ms. Tokar: That is correct. They can destroy a building if there is no alternative.
The Chairman: Honourable senators, we must then delete clause 14. Shall clause 14 carry, and I expect the answer no.
Senator Comeau: Yes, right.
The Chairman: Shall clause 14 carry?
Hon. Senators: No.
The Chairman: Not carried. Thank you.
Who wants to speak to the amendment on clause 15? This is the same thing, as I understand it. Because of amendments we have made elsewhere, clause 15 is now redundant.
Senator Carney: The clause calls for a public meeting.
The Chairman: That is covered in clause 18, is it not?
Senator Carney: We can make sure that clause 18 covers it. Let us agree and we will do that.
The Chairman: It is the same procedure. I call for clause 15, and tell me no. Shall clause 15 carry?
Hon. Senators: No.
The Chairman: Not carried. Thank you.
Who would like to speak to clause 16?
Senator Carney: Have we adopted the amendment?
The Chairman: No, because we deleted clause 15.
Senator Carney: Now we are on clause 16.
The Chairman: As I understand it, this amendment is the same sort of thing: deleting the clause and renumbering subsequent clauses and any cross-references accordingly.
Senator Carney: I want to understand that you have done exactly what most of us as politicians loathe. You replaced a procedure with ministerial authority. You have taken a detailed piece of legislation and you have made it a framework authority, which most politicians do not like because it means that the minister can do whatever the minister wants. I want you to be clear on that.
Senator Johnson: The minister does everything here.
Senator Carney: I think that was not the intention. We can maybe adjust that another time, or we can deal with it in clause 18.
The Chairman: Then I am in your hands. Shall clause 16 carry?
Hon. Senators: No.
The Chairman: Not carried. We are on to clause 17. The amendment replaces lines 25 to 27 with the following: ``maintain it in accordance with the criteria established under paragraph 18(c).'' Clause 18(c) reads: ``prescribing the form and manner of filing applications for authorization.''
Who would like to speak to that?
Senator Baker: Clause 18(c) is being changed.
Senator Carney: I have agreed to that. They want to ensure that this provision is in keeping with national and international standards for conservation of heritage properties. There is an agreement between the department and me on that.
The Chairman: The amendment to clause 17 can carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 17 as amended carry?
Hon. Senators: Agreed.
The Chairman: Would the law clerk like to speak to the amendment to clause 18?
Senator Baker: Describe ``criteria.''
Ms. Tokar: Because we no longer have regulations, we are now looking at prescribed criteria by the minister for designation, alterations and maintenance. First, the minister must establish criteria to be taken into account.
I assume you want that sub-amendment, (ii) ``lighthouse and whether any related built structure. . . .''
The Chairman: To be consistent, we need ``built structure'' throughout.
Ms. Tokar: The minister's criteria for alterations are in clause 18(b) of the amendment: that the minister establishes criteria and procedures for alterations in keeping with standards.
If I understood correctly, in relation to alterations, you wanted to ensure that a provision was made for public consultation.
Senator Carney: Yes, everything is at the minister's discretion. There is no requirement for public consultation. Let us take what we have here. First, let us deal with clause 18. ``The minister must. . .'' We agree on that. ``The Governor- in-Council may. . .'' ``The minister must establish criteria to be taken. . .'' We have agreed on that. The minister must decide whether there is any related structure. Somewhere in there we need the paragraph that says there must be a public hearing.
The Chairman: Clause 18(b) in the bill reads: ``respecting the publication of notices of public meetings.''
Senator Carney: Do you think that is sufficient?
The Chairman: I do not know, but that is the first reference I see to public meetings. I do not see any other reference to public meetings in clause 18 except for that one.
Senator Carney: Let us go back to clause 15.
The Chairman: It has been deleted.
Senator Carney: I know, but let us go back to the wording of clause 15(2). It says:
Before making a recommendation. . . .
(a) must give all interested persons a reasonable opportunity to make representations concerning the application; and
(b) may sponsor a public meeting on the matter. . . .
Why not move that clause that ``the minister must. . . .''?
The Chairman: What you want to do is add clause 15(2)(a) and clause 15(2)(b) in the bill to clause 18, as I understand it?
Senator Carney: Yes, that the minister ``must give all. . .'' However, it does not need to include ``one member of the Board who presides over the meeting'' because that is now redundant.
The Chairman: The issue here is public consultation. This seems to have been an important issue in the bill from the beginning, that there should be public consultation. The only reference to public consultation in clause 18 is clause 18(b) of the bill, which reads: ``respecting the publication of notices of public meetings,'' but there is nothing specific in there to say that there must be public meetings. It was in clause 15(2)(a) and 15(2)(b) of the bill.
Senator Baker: It was in the section that I referenced earlier when I asked about the 90-day period, which had to do with public meetings and public consultation prior to the sale or disposal of any of the properties. That is why I asked, ages ago, about the 90 days, because that had to do with the calling of the public meetings. That goes right back to clause 12, which was the amendment proposed, which we did not accept at that point.
Let me read a suggested wording for you that appeared in a proposed amendment to clause 12:
(2) A heritage lighthouse, or any part of it, may only be sold if a public meeting is held on the matter in the area in which the lighthouse is situated, unless the sale is to a municipality.
The Clause 12(3) amendment says:
(3)Any transaction effecting a transfer to Her Majesty in right of a province or a sale shall provide for the protection of the heritage character of the heritage lighthouse by any means that the Minister may authorize.
The section before that talks about publication of notices at least 90 days before the transfer or sale in one or more newspapers.
What Senator Carney prefers is this wording, which is in clause 15 of the present bill, before it was amended. Clause 15(2)(a) of the bill reads:
(a) must give all interested persons a reasonable opportunity to make representations concerning the application; and
(b) may sponsor a public meeting on the matter. . . .
I move that this section recognized as being page 5 of the bill prior to amendment, identified as clause 15(2)(a) and clause 15(2)(b) be added to clause 18 as an amendment.
The Chairman: There is a motion from Senator Baker to include that as an amendment to clause 18. Is everyone clear?
Senator Comeau: I have a question to the law clerk. Why would you suggest deleting this important part, which is the concept of public consultation? Why would it be deleted or be suggested to be deleted if it did not reflect the nature of the agreement Senator Carney had with the department.
I do not know if I am explaining myself clearly. I am referring back to the nature of the discussions between Senator Carney and the department.
Ms. Tokar: I can only clarify that we were not privy to the agreement between the two senators. That is not to say that we did not hear someone say there are talks going on, but in terms of instructions that we received, we did not receive any instructions to reflect the content of the agreement or to reflect an agreement. We received two separate sets of instructions. One was to implement 10 recommendations from the government; one was to implement four. We prepared those two packages.
The Chairman: There is a motion on the floor from Senator Baker to add to clause 18 the wording that appears in clause 15(2)(a) and clause 15(2)(b) of the bill. Is everybody clear on that?
Senator Carney: Subclauses (a) and (b) have been changed to ``shall'' — ``shall sponsor a public meeting.''
The Chairman: Subclause 2(a) reads: ``must give all interested persons;'' is that right?
Senator Carney: He said ``shall.''
Senator Baker: ``Shall sponsor a public meeting on the matter.''
The Chairman: Then the motion from Senator Baker is the wording of clause 15(2)(a) and 15(2)(b) with the change in subclause 15(2)(b) from ``may'' to ``shall'' added to clause 18. Is everyone clear?
Mr. Audcent: I would like some specifications because we will probably be asked to implement this.
Clause 18 is a regulation-making power. In clause 15, you have eliminated the first two lines of subsection (2); you are only looking at paragraphs (a) and (b), so ``must give all interested persons a reasonable opportunity'' and ``must sponsor a public meeting.''
The Chairman: Okay. Are you saying we should include the whole of the two lines?
Mr. Audcent: The problem with the two lines is that the recommendation depends, for example, on a board existing, which does not exist any more.
Senator Carney: You change ``Board'' to ``advisory committee.''
Mr. Audcent: In clause 18, we are into regulation-making powers, so if you move clauses (a) and (b) into 18, you would have giving notice and sponsoring a public meeting in respect to the making of regulations but not in respect to anything to do with lighthouses. I do not know what your intention is, but if you put subclauses 15(2)(a) and 15(2)(b) into clause 18, you are putting in that you need to have these meetings in respect to making regulations.
Senator Carney: The regulatory process allows for public meetings. I am an expert on that. I teach it at university. There is nothing wrong with moving them into regulations.
Mr. Audcent: What we would then say is, for example, the minister in establishing regulations (a) must give all interested persons a reasonable opportunity; (b) shall sponsor a public meeting. Is that the intent?
Senator Carney: I do not think you even need to say that. It says the minister may make regulations — you have taken out ``prescribing'' — establishing criteria to be taken into account, whether it should be related.
Part of that could be, in establishing the criteria, the criteria should give all interested persons reasonable opportunity.
Mr. Audcent: Which criteria, in the case of sales, transfers —
Senator Carney: Yes.
Mr. Audcent: Everything of lighthouses must —
Senator Carney: — allow for the public consultation process. That can be done in regulations.
The Chairman: Senator Carney, are you comfortable with Senator Baker's motion?
Senator Carney: Yes, ``The Minister may make regulations,'' which are criteria. The criteria will be regulations. I do not like it; it gives the minister too much power; ``may make regulations (a) establishing criteria to be taken into account in considering whether a lighthouse. . . .'' and the criteria ``(b) must give all interested persons a reasonable opportunity to make representations. . .''
The Chairman: So you are happy with Senator Baker's motion.
Senator Carney: Yes: When we get to clause 18, we need to change the wording.
Ms. Tokar: I might point out that the amendment to clause 18 does away with regulations. The amendment to clause 18 replaces clause 18 by saying the minister must establish the criteria. It does not include a regulatory process. It does not specify how it is done, but it is not done by regulation in the amendment.
My concern is that, before, alterations, destructions and transfers were all dealt with through an authorization process, which did require these hearings and meetings.
Senator Carney: It should be reinforced in this bill to ensure we have not missed it elsewhere in all the deletions. I do not see what the problem is. We are saying the minister may make regulations, and criteria is part of the process. Do you want take out regulations and say the minister may establish criteria?
Ms. Tokar: That is what the amendment reads right now. It reads:
The Minister must
(a) establish criteria. . .
Senator Carney: All we really need to do is add Senator Baker's motion as subclauses (d) and (e).
``The Minister must
(a) establish criteria to be taken into'', and
. . .by replacing lines 33 to 46 with the following'',
relating to lighthouses, et cetera,
(b) establish criteria and procedures respecting the alteration. . .
(c) establish criteria for the maintenance of heritage lighthouses. . .
and have public meetings. Add the two as subclauses (d) and (e). That says that the criteria must include those two things.
Senator Baker: You could simply say, establish criteria as the law clerk suggests. Establish criteria relating to what? Relating to what our amendment is; in other words, the public meetings and so on.
The Chairman: You are saying clause 18 would read, ``The Minister must establish criteria.''
Senator Baker: Yes, and then continue on with the statement concerning the public meetings.
Senator Carney: As the Chairman said, add subclauses (d) and (e).
Senator Baker: To bring it within the meaning of establishing criteria and none of it imposing a regulation on the minister.
Senator Carney: It is easier on the minister.
The Chairman: I need some firm wording for clause 18. As I understand it, clause 18 says now, ``The Governor in Council may make regulations. . . .'' That will be changed to ``The Minister must establish criteria,'' right?
Senator Baker: Yes.
The Chairman: Where do we go from there?
Senator Baker: We add a new subclause (d).
The Chairman: The clause would then read, senators, as follows: ``The Minister must establish criteria,'' and then we have two —
Senator Baker: Then you have (b), establish criteria, and (c) establish criteria, (d) is establish criteria giving all interested persons reasonable opportunity to make representations concerning the application and shall sponsor and, concerning the sponsorship of public meetings on the matter.
The Chairman: I wish we could have that in writing.
Senator Baker: Do you want me to repeat it?
The Chairman: We do not have it before us.
Senator Carney: We are accepting the wording entirely of the amendment, and adding to it.
The Chairman: Are senators clear on what we are being asked to do?
Senator Cowan: If you are clear, we are clear.
The Chairman: Is everybody clear?
Senator Comeau: Everybody is clear.
The Chairman: Everybody is clear.
Shall the amendment as amended by Senator Baker carry?
Senator Comeau: No.
Some Hon. Senators: Carried.
The Chairman: Do you want a standing vote?
Senator Comeau: Yes, vote on it.
Senator Cowan Agreed.
Senator Johnson: Please repeat it.
The Chairman: Senator Baker, go ahead.
Senator Baker: It will add, in conformity with subclauses (a) and (b), which start with the words ``establish criteria,'' and this would be a new section: ``establish criteria giving all interested persons a reasonable opportunity to make representations concerning the application and the sponsorship of a public meeting on the matter.''
Senator Johnson: That is clause 18, yes, public agreement.
Mr. Audcent: Senator, you have picked up language in clause 15(2)(a) concerning the application and used the word ``application,'' but there are no more applications.
Senator Carney: There are petitions.
Mr. Audcent: But there are no applications.
Senator Carney: Application and petition is the same thing.
Ms. Tokar: The petitions are in relation to the designation of lighthouses. We are now in a portion dealing with the alteration.
Senator Carney: How do people apply to make the alteration?
Ms. Tokar: They do it in accordance with the criteria and procedures established by the minister.
Senator Baker: If you go back to the amended clause 18(a), it says ``establish criteria and procedures respecting the alteration of heritage lighthouses. . .in keeping with national and international standards. . . .''
You then come to clause 18(d), and it says, ``and establish criteria giving all interested persons a reasonable opportunity to make representations'' concerning the matter and sponsoring a public meeting concerning the matter, or any such wording that the clerk or the law clerk may suggest to accomplish same.
The Chairman: I was in the process of calling a vote. I have a vote from Senator Cowan.
Senator Johnson: Agreed.
Senator Baker: Agreed.
Senator Watt: Agreed.
Senator Hubley: Agreed.
The Chairman: The amendment carries.
Shall clause 18 as amended carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 19 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Now, shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the preamble carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the bill carry, as amended?
Hon. Senators: Agreed.
The Chairman: Carried. Shall I report the bill as amended?
Hon. Senators: Agreed.
The Chairman: Carried. Thank you.
Senator Hubley: Thank you, Mr. Chairman, for your patience.
The committee adjourned.