CROWN FOREST SUSTAINABILITY ACT, 1994 / LOI DE 1994 SUR LA DURABILITÉ DES FORÊTS DE LA COURONNE
CONTENTS
Thursday 24 November 1994
Crown Forest Sustainability Act, 1994, Bill 171, Mr Hampton / Loi de 1994 sur la durabilité des forêts
de la Couronne, projet de loi 171, M. Hampton
STANDING COMMITTEE ON GENERAL GOVERNMENT
*Chair / Président: Brown, Michael A. (Algoma-Manitoulin L)
*Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)
*Acting Chair / Président suppléant: Grandmaître, Bernard (Ottawa East/-Est L)
Arnott, Ted (Wellington PC)
Dadamo, George (Windsor-Sandwich ND)
*Hope, Randy R. (Chatham-Kent ND)
Johnson, David (Don Mills PC)
Mammoliti, George (Yorkview ND)
*Morrow, Mark (Wentworth East/-Est ND)
Sorbara, Gregory S. (York Centre L)
*Wessenger, Paul (Simcoe Centre ND)
*White, Drummond (Durham Centre ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Bisson, Gilles (Cochrane South/-Sud ND) for Mr Dadamo
Hodgson, Chris (Victoria-Haliburton PC) for Mr Dave Johnson
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)
for Mr Wessenger
Wilson, Gary, (Kingston and The Islands/Kingston et Les Îles ND) for Mr Mammoliti
Wood, Len (Cochrane North/-Nord ND) for Mr Dadamo, Mr Wessenger and Mr White
Also taking part / Autres participants et participantes:
Ministry of Natural Resources:
Davidson, Stuart, legal counsel
Wood, Len, parliamentary assistant to the minister
Clerk / Greffier: Carrozza, Franco
Staff / Personnel: Filion, Sibylle, legislative counsel
The committee met at 1042 in room 151.
CROWN FOREST SUSTAINABILITY ACT, 1994 / LOI DE 1994 SUR LA DURABILITÉ DES FORÊTS DE LA COURONNE
Consideration of Bill 171, An Act to revise the Crown Timber Act to provide for the sustainability of Crown Forests in Ontario / Projet de loi 171, Loi révisant la Loi sur le bois de la Couronne en vue de prévoir la durabilité des forêts de la Couronne en Ontario.
The Vice-Chair (Mr Hans Daigeler): Okay, gentlemen and ladies, we'll continue the clause-by-clause consideration of Bill 171. When we last met, Thursday last week, we were discussing section 52, to which Mr Brown had an amendment. I think you were in full flight, Mr Brown, as you debated your amendment. I don't know whether you wish to continue this at this time.
Mr Michael A. Brown (Algoma-Manitoulin): Just to refresh the committee's memory perhaps, so that we can continue this discussion, our amendment to this section comes from a concern with this section as printed, that it uses words that we find problematic, and that I think most people should find problematic, in that it refers to "loss or damage" in the original section. Many people have great difficulty understanding what "loss or damage" might mean in a forest operation. In a forest operation, by definition, you're cutting trees. Most people would consider that a loss or a damage.
The wording that is presented to us doesn't define "loss or damage." There is no definition of "loss or damage" in this bill anywhere that we can find, and we are concerned that the term is so vague that it will cause great grief out there in the real world as people move through the forest trying to understand what it is they aren't supposed to cause loss or damage to.
Our amendment, we hope, clarifies that. It says, "If the forest operations conducted in a crown forest are contrary to a forest resource management plan or an annual work schedule approved by the minister, the minister may by order...." What that does is clarify that if you are operating in accordance with the plan, if you are doing it in accordance with the work schedule, you are not causing loss or damage.
I will ask the government and the parliamentary assistant to perhaps provide us with an explanation of why or how someone could conceivably cause loss or damage. If they are working under a forest resource management plan or an annual work schedule and complying with the terms and conditions of both of those, how could there be loss or damage, and if there couldn't be, why is our amendment not superior to the government legislation?
Mr Len Wood (Cochrane North): Just briefly, what we're talking about is a sustainable forestry act. If there are situations that develop that are considered where the forest cannot be replanted and if they threaten the forest sustainability, this is the section where it's dealt with. The wording that we've presented we feel better addresses it than the wording that has been presented by the Liberal caucus.
Mr Brown: I reask the question because I think it's important: If you are working under a forest resource management plan and you're complying with that plan and you are working according to the annual work schedule, how could there conceivably be loss or damage? If you just say "loss or damage," the idea that a forest resource management plan means anything or the idea that the annual work schedule means anything is just thrown totally out the window.
Mr Wood: If you look at the section, it says "that impairs or is likely to impair the sustainability of the crown forest or that is contrary to a forest management plan or a work schedule approved by the minister, the minister may by order...." So what we're talking about is ways and means of being able to make sure that the forest is on a sustainability basis, and this is the wording we feel should be there to make sure that happens.
Mr Brown: I don't understand what "loss or damage" can mean in the forest context. What do you mean? What could be a loss or damage in the forest if you are following the plan and the work schedule?
Mr Wood: In the past, companies have used specific pieces of equipment out in the forest following the plan that was laid out and yet the equipment they were using, because of the season they were using it in, was the wrong type of equipment for that particular season. We've had situations where that particular land would not be done on as far as what we consider forest sustainability is concerned. Those situations have happened in the past and we want to make sure that if we do run into those situations, they can be dealt with. This is the section that would be used to deal with those situations.
Mr Brown: Would you not spell out, "You cannot use that kind of equipment in that particular place during that particular season"? What are we damaging? I mean, that's the real question. You can't be, I presume, damaging the tree because you're cutting the tree. That's what the plan calls for. So what is it that you are damaging or what are you losing?
Mr Wood: You're losing the site that can be regenerated in years to come; you're losing that particular area. Sure, you're harvesting the trees, but if you're not doing them on a sustainable basis so that you can have another crop off that particular area in a reasonable period of time, you're not practising good sustainability of the forests.
Mr Brown: So what you're saying is that in instances it is quite conceivable for an operator to meet the requirements of the forest resource management plan and that it's quite conceivable that the operator follows to the letter the annual work schedule but that the operator would then still be liable for causing a problem, as yet undefined, in the forest.
I'm wondering, if the ministry takes someone to court and I go to court and I say that I followed the forest resource management plan to the letter and this is how I did it, I followed the work schedule and this is how I did it, and you're claiming I damaged something, what is it that I damaged?
Mr Wood: You have sections (a), (b) and (c), which spell out in a little bit more detail as to whether you even can "direct that the forest operations stop; establish limits or require other changes in the forest operations; amend the forest management plan or work schedule" if you see that there's a situation that is not being done on a sustainable basis, where we are going to have the sustainability of the forests.
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Mr Brown: What obligation is there on the part of MNR to deal with an amendment to a forest resource management plan or the annual work schedule because of some conditions that may be found? People didn't foresee that there would be this particular problem, but an operator arrives, he's cutting the trees, he's taking them off to the mill or wherever, and he discovers, for example, a hawk's nest or something that he should stay away from that no one would have had any idea was there before. So he calls the ministry and he says, "What do I do?" What obligations is there on the part of the ministry to come out and say to that operator, "This is what you do, this is how you do it and in a timely fashion"?
The problem here is that the wording is so vague, we don't know what the loss might be, we don't know what the damage might be. We do understand that there may be instances where there needs to be an amendment to the annual work schedule. The problem is that if you've got millions of dollars of equipment and a lot of people out there who value their jobs, who need to bring the paycheque home, how quickly will the minister respond and say: "Yes, you will" -- in your words -- "create a damage or loss if you continue here," or: "It's okay. Just continue on. It isn't a problem. There isn't a damage or loss"? Because having to wait costs operators, and particularly workers, millions of dollars in that situation, or conceivably could.
Mr Wood: There are situations that are probably not going to be covered by the plan that, when the operation starts, we're going to have to deal with to make sure that they don't impair the sustainability of the forests, and these are the situations we want to be able to deal with. It's very similar to starting to rebuild or remodel a 200-year-old house and not knowing what you're going to run into until you start tearing things apart and putting them back together.
There might be situations that are out there that are not covered in the plan because nobody was aware of them and that the situations developed. The intent is that the forest operations would stop and find a way of amending things, making sure that the operations can start up again but that they can be done on a sustainability basis.
Mr Brown: You continue to use the word "sustainability," and the problem all the way along has been the fact that we can't define sustainability. What we need here is some certainty around the words "damage or loss." Otherwise you conceivably, in this legislation, could stop virtually every forest operation in the province of Ontario, because people don't know how they might impact the environment and how they might impact a sustainable yield, which is different, on that particular area of land.
Our problem is almost solely in definition. We don't argue with the fact that you shouldn't cause damage or loss; we just want to know what it is and how, if it's perceived that there could be a damage or loss, the ministry might deal with it. If I'm an operator working in good conscience and I come to the ministry -- because, frankly, I know of cases where the ministry response has been a week or two weeks. They didn't have personnel. It wasn't the personnel's fault that they didn't come out, but they literally have stopped operations in the forest just because there wasn't somebody to come out and say, "This is what you should do." It was resolved, they did come to an agreement on what should be done once the ministry appeared, but you're costing Ontario workers thousands of dollars in wages when you just stop and have to wait a week or two for the ministry to come out and have a look when the operator says, "Will I cause some kind of problem here?"
I'm sure you're aware of some situations where that has happened in your area too, Mr Wood.
Mr Wood: I'm not aware of any situation since 1990, but I know there was --
Mr Brown: I can tell you about some this summer some time if we want to have a chat.
The Vice-Chair: We don't want to have chats right now.
Mr Wood: It's not the intention to hinder the industry or stop the industry from being able to do what it's out there doing, but there could be unforeseen situations and incidents arise where it would be in the best interests of the taxpayers and everybody in the province that the situation was stopped until you could address the area in question and have amendments from the work plan that would make sure that we do not impair the sustainability of the forests.
Mr Brown: So the government then believes that the term "damage or loss" will hold up in a court of law? It is your belief that you could successfully prosecute on the basis of "damage or loss" if an operator has complied with the annual work schedule and has complied with the management plan? On what basis would the court make that decision? That's the problem. If I'm an operator out there who wants to do the right thing, I have to know what the right thing is.
Mr Wood: I hope you're not expecting me to put on my lawyer's hat or my lawyer's shoes, because I'm not educated in the field of a lawyer, whether it's going to be won in court or whether it's going to be lost in court. That's a position that I wouldn't want to speak on, but the advice and information that we have in drafting the legislation is that what has been written here is fair.
Mr Brown: In the definitions section, are you prepared to define "damage" and are you prepared to define the word "loss"?
Mr Wood: We've worked around what we consider the sustainability of the forests. As for the other questions, no, we're not prepared to do that.
Mr Brown: I suspect you're prepared to have a court decide that at some future date. Is that your position, that you are prepared to let a court decide?
Mr Wood: What we're saying is that "loss or damage" is limited to the sustainability of the forests. We're saying that we do not want to impair the sustainability of the forests out there.
Mr Brown: Well --
The Vice-Chair: Mr Hodgson actually also has a question. I'm not sure whether we're making much progress on this amendment. Mr Hodgson.
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Mr Chris Hodgson (Victoria-Haliburton): Does this not go back to what we were discussing a couple of days ago about a guideline or a handbook that's going to be incorporated into the manuals on practices of forestry? I agree with Mr Brown, unless you have some kind of guideline for operators -- my understanding was that we were told either at the last committee day or the day before that there's going to be an operator's guidebook included in the manuals which would spell out a lot of these things -- define what damages are when you come to a creek; if you're operating within your management plan, how you're to conduct that operation. It was my understanding that this would be defined. If that's not going to be defined in the manuals with the force of law, then I agree with Mr Brown. How do you know what you're supposed to be doing out there and are you just supposed to keep your mouth shut and not question the ministry officials?
There's sort of a chilling effect of government if you leave it this vague without some definition either in the manuals through an operator handbook or, as Mr Brown's requesting, right here in this section to define it. My fear is that what's happening -- it's not just because of delays if you run across a problem, but if you do report it, you don't know what the results are going to be. The incentive is not to report anything and just be quiet and be good and carry on business as you normally would and hope they don't come out and see you. I don't think that's the environment we want to foster with a sustainable forestry act.
Mr Wood: In your opening comments, you're talking about a booklet and the manuals. Sustainability is determined by the manuals and the handbook. The handbook will be developed to provide consistency and application on this particular section. I might point out as well that the industry and other groups are working to develop the booklet that you referred to in your opening comments. It's being developed together, whether it be the sawmill industry, the pulp and paper industry or other groups out there developing that book, and they're actually the experts out in the field and they will be determining what should be in there as far as sustainability being met.
Mr Hodgson: You understand the problem we're getting at here, that there's no clear definition and if you have it -- Mr Brown's amendment speaks to this, "If the forest operations conducted in a crown forest are contrary to a forest resource management plan or the annual work schedule approved by the minister." Maybe you want to add something more to that, but at least that gives a good guideline.
The Vice-Chair: Did you want to comment, Mr Wood?
Mr Wood: No.
The Vice-Chair: Any further discussion on this amendment?
Mr Brown: I think Mr Hodgson has made the point. If, in the scenario that I put forward a moment or two ago -- you speak to a hawk nesting in a tree and you discover it, much to your surprise, as you're in the midst of the operation. You then have a choice: "Do I call the ministry and ask them what I should do or do I just do it? Do I just continue and cut down the trees the nest is in, don't call anybody? If I do, and I cut down those trees and I do those things, nobody is ever going to know." There is no evidence left on the ground that you have destroyed that wildlife habitat. That's gone off to the mill. If it is not clear and if an operator will find out two weeks -- if he does call, find out that in two weeks somebody's going to come out and say what I can do --
Mr Hodgson: Or maybe charge him.
Mr Brown: -- and you have to wait for two weeks, the incentive to deal with this in a reasonable sort of fashion and do the right thing is all gone. I'm going to have to lay off every worker that's here. I'm going to have to leave my expensive machinery sitting there because I don't know (a) if it really is a loss or a damage, and (b) how long it's going to take for the ministry to make up their mind whether it is a loss or a damage, and therefore I'm at risk of laying off a lot of people, causing a lot of grief in the economics of my little town I might be nearby, just because you don't define what it is and won't commit to a quick and speedy resolution of anything that I might report.
Don't you see the problem? The problem is there has to be certainty.
Mr Wood: I like to be able to take the position different from what you have, Mr Brown, that we have a lot of good corporate citizens out there who are taking their sustainability of the forests in a responsible and sincere manner, and they want to make sure that what is out there is on a sustainability forever. There might be people out there who are going to say, "Well, to heck with it, I don't care what happens." I would like to take the position that they're operating on crown land. They have a responsibility for their children, their grandchildren and are responsible corporate citizens, and they're going to want to make sure that there are forests out there on a sustainable basis. They will report it and will hopefully expect to get a resolution to the concern as quickly as possible so they can get back to harvesting.
Mr Brown: I think one of the members just made the point. We don't need laws if that's the way this is to work. We could just have the title of the bill and we could forget about it, because all people are good and wise and wonderful. I'm not sure that's really the case, Mr Wood.
Mr Wood: The large majority as far as I'm concerned.
Mr Brown: I agree. We wouldn't need a bill if we were dealing with the large majority. The large majority will always do the right thing. We're looking at the operators. I can tell you, if you make a law that is punitive for doing the right thing, you're going to cause even some of those people in the majority situation to scratch their heads and wonder if they should do the right thing. You shouldn't be penalized for doing the right thing. That means you have to define what the right practices are, which means you have to do it in the plan, which means you have to do it in the work schedule.
You have to define how that's going to be done and I'm sure all the good operators will do that and all the good operators will follow that, but people will be very concerned that even if they meet all the qualifications, somebody from MNR can come down, tap them on the shoulder and say, "Well, you damaged a blueberry patch over there that you weren't supposed to." Now, no one would want to damage the blueberry patch, but it could happen. They would want to know what, exactly, loss or damage means: "Do I face prosecution? What is it that I can't do or I should do on the positive side?"
As I talk to people in the environmental community, as I talk to people in industry, their biggest problem with this legislation is the absolute permissiveness, the absolute vagueness of this legislation. It appears as though a minister can decide on these definitions at any time. People don't know whether they're complying. All we're asking through our amendment is that we put certainty in it, and if it needs more certainty, then obviously there'll have to be more work put into the plan and obviously there'll have to be more work put into the work schedule in order to get some certainty.
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But to leave words like "loss or damage" when you're talking about harvesting is absolutely so broad as to cause huge problems to both the environment and the economy. We just can't understand why you won't define those two words and then we could be happy, and if you're not prepared to define them, take them out. What our amendment essentially does is take those two offending words out, because you have not offered a definition for those words.
Mr Wood: These are covered in the manuals and they're covered in the handbook that is going to be out there. "Loss or damage" is limited to that we do not impair the sustainability of the forest.
Mr Brown: That will make everybody feel better.
Mr Wood: And sustainability is determined by the manuals.
Mr Brown: Could you point out to us, then, what sections in the manual specifically spell this out?
Mr Wood: As I said earlier, the industry and all of the stakeholders out there are developing the handbook to cover the situation.
Mr Brown: And the government seriously believes at this point that the legislators in this province should approve wording like this because, some time in the future, we're going to come to a resolution of this problem? You think we are exercising our role on behalf of the people of Ontario to adopt something which conceivably could cause great harm to both the environment and the economy on the basis that some time in the future, in the manual, we will come to a consensus about what these words might mean? Frankly, it's unbelievable.
Mr Wood: I guess we could go on for a long period of time, but this is a section under Remedies and Enforcement which is written to cover some unforeseen situations that are out there, and the feeling is that it must be there so that we can continue to have sustainability of the crown forests there, because there are unforeseen situations that might come up. Hopefully they're all covered by the working booklet that is there, but if there are some situations, the minister wants to be able to direct forest operations to stop for a short period of time and address the situation that was unforeseen when the plan was drawn up and maybe not covered in the booklet.
Mr Brown: On the crown land units, it's quite conceivable -- as a matter of fact, I think it's government policy -- that in areas where you haven't formed your famous co-ops or come to some other arrangement about licensing that we may have 20 different companies operating on the same crown unit, all under some sort of licence. In that case, the ministry will have done, according to you, a forest resource management plan, and according to you will have actually put the annual work schedule in place. So you've got an operator who is operating under the ministry's own plan, the ministry's own work schedule. In my experience with the ministry, given the huge cutbacks we've seen to the forestry area, you're not going to have people who are going to be able to run out there and have a look every time somebody questions something.
You're going to find that operators are put in an absolutely impossible situation, just absolutely untenable. They follow the ministry's orders, they do exactly what the ministry wants them to do -- the ministry's even drawn up the plan -- and then the ministry comes along and charges you. That's the situation we're in if you leave those words in this clause. That's why we're arguing so strongly to have those words either defined clearly or removed. The idea that it can be done in manuals is just not on, in my view. You can't even tell me what sections of the manual would define them or do define them.
Mr Wood: Just a couple of brief comments. What we're attempting to do is -- we have the Crown Forest Sustainability Act. We're talking about the sustainability of a forest and we're talking about having plans and legislation in place that is going to mean the survival of the industry in some cases, survival of some communities, survival of the jobs that go along with the industry that are around the communities and also being able to create new jobs. The legislation that we have here is going to do that.
We've seen examples of announcements that have been made out there, but for it to continue to have the growth and the jobs and single-industry towns being protected, we have to have wording that the sustainability of the forest is going to continue to take place for hundreds and hundreds of years to come.
Mr Brown: You continue to use the word "sustainability." You sat through the hearings as well as many of the members who are sitting in this committee room might now. You heard this act described by some environmental groups as a "fraud." You heard some of them say this was an exercise in political salesmanship or political packaging, that the only thing sustainable about this act is the title.
I'm in favour of motherhood and I think every member here is and therefore we're all in favour of sustainability. I can define "motherhood"; I can't define "sustainability." Your act does not do it in the purpose clause. You continue to say that's why we need it, because we need it sustainable, but yet you're unwilling to define it. I think the people of Ontario would like to know what "damage or loss" means in terms of sustainability. Just tell us; don't tell us that it's sustainable. Tell us how damage and loss are defined if you're sustainable.
Mr Wood: We have some sections in the act that require the manuals -- I believe amendments to 66 will require manuals to have more details related to the indicators of sustainability. It's not being avoided, nobody's running away from it. It is there. The industry knows what it means, what is expected of them and I believe most people that we're dealing with are well aware of what the sustainability of the industry, the communities, the jobs, mean. If something is going to happen out there in the forest that is going to put this at risk and the ministry didn't have the right to be able to say, "Let's stop that operation for a little while so we can work around that situation," I think we'd all not be doing our jobs.
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Mr Brown: No one argues that the --
The Vice-Chair: Mr Brown, if I could be helpful a little bit at this point, frankly, I get the impression that we're spinning our wheels. We're getting the same question and the same answer. Obviously, we're not making much progress, and I think probably at this point we should very soon move to the vote on this section, unless we have some new answers or some new questions.
Mr Brown: Well, I am all in favour of moving this on as expeditiously as possible, Mr Chair. You know that, that I've worked diligently to make sure this bill is examined carefully and that we not move on and that we aren't redundant. However, the parliamentary assistant has just described some amendments to section 66 that we made some weeks ago, with all-party agreement, very quickly, because they did help in defining the planning process; they did help, at least in the plan, in defining sustainability somewhat.
That's what's troublesome here, that in section 66 we make at least some modest improvement in the definition of sustainability according to the planning process -- not to the result, but to the planning process -- and now you're saying, "Well, we know what sustainability is in 66, but after having gone through that process, we want the right to arbitrarily stop an operation at a minister's whim." That's what it sounds tremendously like to us: The minister wakes up on the wrong side of the bed and says, "You're going to stop."
There's no penalty at all attached to the minister making the wrong decision, and that's our problem. I don't want to run this out or talk for much longer on this point, and I think the Chair is correct, the answers and the questions all seem reasonably redundant, but we are trying to get the government to acknowledge there's a problem with this clause.
The Vice-Chair: I just want to be clear, Mr Brown. I'm not commenting on the quality of either the question or the answer; I'm simply saying both continue to be the same, and I don't think it's particularly helpful to ask the same question and get the same answer for much longer.
Mr Brown: But you see, the opposition is hoping to get a more reasonable answer, Mr Chair.
The Vice-Chair: I know, but I think you've certainly valiantly tried for 45 minutes. Mr Wood, did you want to give a different answer?
Mr Wood: Well, the only thing I would say is that the last two days we had looked for unanimous permission to move to section 66, which the amendment would have addressed, and I think it would have probably cut short some of the debate that has happened here. I know we have agreed that, yes, it will be opened up for the amendment, but only when we get to that particular section, and maybe it's something that we should look at. It would probably cut down on some of the discussion if we could get unanimous agreement to move to that section and deal with that amendment after we've dealt with this particular one, the Liberal motion.
Mr Brown: I'm hearing something different. We of course have copies of the amendment to section 66 and have studied it carefully. We believe it is a novel approach to doing a bill. Reasonably, I think most people would tend to believe you would deal with section 66 some time after section 65 and some time before section 67.
Mr Wood: The only thing I would say on that is that we dealt with section 66 as a group, with unanimous consent, out of order, and all we were looking at was moving --
Mr Brown: The answers are different now, Mr Chair.
Mr Hodgson: Mr Chair, you've got different answers, but what are we talking about?
The Vice-Chair: Frankly, I didn't detect much difference. Are we ready to vote? Perhaps we can continue some of these questions at the next section.
Mr Brown: Mr Chair, just to be helpful, the clerk has just handed us some new amendments to section 66 and some new amendments to section 67 and some new amendments to section 72. I would guess that this makes the case even stronger for waiting to deal with section 66 after section 65. I think before we vote on this important section, which I believe is one of the critical sections in the bill, we would have to ask for 20 minutes.
The Vice-Chair: You're asking for a 20-minute recess?
Mr Brown: If there's going to be a vote.
The Vice-Chair: At this point, we're still in the debate.
Mr Brown: I think the government needs some time to consider voting in favour of a well-thought-out and well-placed amendment.
The Vice-Chair: Are we ready to vote?
Mr Brown: In 20 minutes.
The Vice-Chair: Okay. I'll call again, are we ready to vote?
Interjection: Yes, we are.
Mr Brown: Twenty minutes, Mr Chair.
The Vice-Chair: Mr Brown is asking for a 20-minute recess. This committee stands adjourned until 11:45. We'll see you at 11:45, those who are here.
The committee recessed from 1126 to 1148.
The Acting Chair (Mr Bernard Grandmaître): We will now reconvene. You have before you an amendment to section 52, which was introduced by Mr Brown, and I'm told that we'll have a vote immediately.
All in favour of the amendment? Against? Defeated.
The next item is a government motion, an amendment to subsection 52(2).
Mr Wood: I move that section 52 of the bill be amended by adding the following subsection:
"Application of subsection 8(2)
"(2) Subsection 8(2) applies with necessary modifications to the amendment of a forest management plan or work schedule under clause (1)(c)."
The Acting Chair: Comments?
Mr Brown: What does that mean?
Mr Wood: Just briefly, this section provides authority for stop-work orders to prevent loss or damage. Clause 52(1)(c) provides authority to make changes to plans to prevent future loss or damage. It's a clarification of the original intent to address some of the questions that have been raised since the bill had first reading.
Mr Brown: That is not very clear. Do you want to try that one again? I'm reading subsection 8(2):
"The minister shall not approve a forest management plan unless the minister is satisfied that the plan provides for the sustainability of the crown forest, having regard to the plant life, animal life, water, soil, air and social and economic values, including recreational values and heritage values, of the crown forest."
This says:
"Subsection 8(2) applies with necessary modifications to the amendment of a forest management plan or work schedule under clause (1)(c)."
Clerk of the Committee (Mr Franco Carrozza): That's section 52.
Mr Brown: So am I to understand, then, that the conditions in subsection 8(2) then apply to clause 52(1)(c)? Is that what we're saying here?
Mr Wood: Basically what we're saying, to simplify it as much as possible, is that the minister won't make an amendment unless it's sustainable.
Mr Brown: That good old word "sustainable" again. I think that's what it means. We will be supportive of this amendment. However, the parliamentary assistant is going to help me a little bit with the process, I hope. That means that if there needs to be an amendment to a plan or to a work schedule, then you must comply with subsection 8(2). I understand that. Is there a requirement for that amendment to go through the public consultation process?
Mr Wood: Yes.
Mr Brown: Where do we see that?
Mr Wood: It's covered in the forest planning manual.
Mr Brown: Section what?
Mr Wood: It's covered under the forest planning manual, in the manuals.
Mr Brown: It's covered in the manual but not in the legislation?
Mr Wood: The manuals are part of the legislation.
Mr Brown: But a manual can be changed by order in council at any time. Is that not correct? The manuals receive their authority from the regulations, which receive their authority from this act. The regulations can be passed by cabinet, provided they're consistent with this act. Therefore, the manuals can be changed by cabinet as long as the act permits that. Is that not correct?
Mr Wood: I think the answers will be clearer as we get to subsection 66(2), government motion number 2, the one that we've been looking for unanimous approval to move to.
Mr Brown: I'm afraid that's not right. We received subsection 66(2) 20 minutes ago. You were hoping for unanimous consent to subsection 66(2) last week, which was a different amendment than this one, I take it, or we would be using the same one. But let's not argue about subsection 66(2) right now; we'll have an opportunity to do that later. My problem here is that if it does not require in the legislation that this go through the process and there is a public consultation, then I think we have some EBR issues.
Mr Wood: In the section that I'm looking at here, the original amendment that was brought forward, part of it is including public involvement in the decision-making processes. So this is covered under subsection 66(2), if you look at clause (a), if we can get to the amendment.
Mr Brown: Well, I'm just looking at it. If you want to talk about that right now, we can.
Mr Randy R. Hope (Chatham-Kent): If he's reading it, it will allow a rational conversation to occur. I mean, if I look at this amendment that's being brought forward, dealing with subsection 8(2) of the bill, subsection 8(2) talks about the criteria for approval. When you're talking about section 52, section 52 is dealing with damage by forestry operations, and clause 52(1)(c) talks about an amendment to the forest management plan or work schedule.
When you're amending the forest management plan or work schedule, this additional amendment that's being placed says you must comply with subsection 8(2), which says:
"The minister shall not approve a forest management plan unless the minister is satisfied that the plan provides for the sustainability of the crown forest, having regard to the plant life, animal life, water, soil, air and social and economic values, including recreational values and heritage values, of the crown forest."
So all that's doing is reinforcing that if damage by forest operations occurs and there needs to be an amendment to the management plan or work schedule under clause 52(1)(c), this amendment just tells you to go back to subsection 8(2) and make sure you comply with subsection 8(2) of the act. That's all it's doing.
I'm reading this amendment to clear up everything. So that way, if I'm reading it and I'm saying, "Okay, I've got to amend my forest management plan. What criteria do I follow?" I've got to go back to subsection 8(2), because the amendment tells me to go back to subsection 8(2), the new amendment we're placing, and subsection 8(2) tells me I've got to take these things into consideration when I'm amending my plan. It's very simple. I don't know what the questions are about the amendment.
Mr Brown: I'd indicated that we were supportive of this amendment, but my question was --
Mr Hope: But you said "but."
Mr Brown: My question, if you'll recall, was, is this subject to the public consultation process? The parliamentary assistant says that 20 minutes ago I got a proposed amendment to subsection 66(2) that says that it is subject to a public consultation.
Therefore, if we go back and look at the scenario that I am an operator in the forest and I have received a stop-work order because, although I'm working under the present management plan and I'm working according to the work schedule -- so I'm doing everything I'm supposed to -- but something out there that the minister, in his or her wisdom, has decided is a problem, it could cause damage or loss, whatever that means, that means I can't proceed until I have an amendment to the plan. That means I can't proceed then until there's a public consultation about the amendment to the plan. That means I can probably pack up and go home for the next couple of years. Is that what it means?
My experience is that public consultations take some time. My experience is that this would preclude the minister from addressing the specific concern, the hawk in the tree over there, until the amendment is made, and that before that amendment is made I have to go through a public consultation process. Is that what this means?
The Acting Chair: Parliamentary assistant?
Mr Wood: I'm ready to vote.
The Acting Chair: I heard a question. Have you got an answer?
Mr Wood: Well, we've gone through that in the last section we were dealing with. I'm ready to vote.
Mr Brown: I'm afraid we haven't gone through that in the last section. If there's a stop-work order placed on an operation and the stop-work order, because of the annual work schedule and because of the forest management plan that has been approved, needs to be amended before I can go any further, can the minister say to me as an operator, "You can go ahead if you just stay away from that by 400 metres, just move off to the south," or whatever? Can I go ahead or is that then contravening the management plan because I had never intended to do that, and therefore now I need an amendment that has to go through the public consultation process? I'll just issue my layoff slips right now and we'll all go home and collect UI or whatever.
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That's a legitimate question. People out there need flexibility. They need to know so they can continue to work in the forest, and there's another perfect disincentive to inform the ministry we've got any kind of a problem out there at all.
Mr Wood: If we're to maintain the sustainability of the forests, I'm sure that if there's one area that is in question, it is going to be damaged and, as you said, there's a stop-work order out there, I would expect that in the forestry industry there would be another area that they would be working on, because they wouldn't be limited to that specific area. They would be going to another area while this situation is being dealt with as speedily as possible, involving the public in the decisionmaking process. So what the end result should be so that we can make sure the forests out there are managed in a sustainability fashion --
Mr Hope: I suggest that it now being 12 of the clock, we can recess.
The Acting Chair: Did you say a recess?
Mr Hope: Recess until this afternoon.
Mr Wood: We want to go for another 10 minutes if possible.
The Acting Chair: I thought there was an understanding that we would go beyond 12 o'clock, shortly after 12, possibly 10 minutes.
Mr Hope: I didn't hear that understanding, but if you're saying we're going beyond 12, fine.
Mr Wood: Thank you.
The Acting Chair: Another 10 minutes.
Mr Brown: The parliamentary assistant in his response is suggesting that the annual work schedules will have a high degree of flexibility in them in terms of how an operator may be harvesting the forest. Given that high degree of flexibility, which I'm not sure should be there or even is there, again we come back to, what's "damage or loss"? If I have a stop-work order at one place, how am I certain about what I could do in the other, given that the situation may be somewhat similar?
The Acting Chair: Is there a comment, Mr Parliamentary Assistant?
Mr Wood: I think we've tried to explain what section 52 means. The amendment that is brought forward is brought forward as a result of consultation with a large number of people out there and is something that we feel everybody can live with and is going to help in the sustainability of the forests for years and years and years to come, as I said before, talking about single-industry towns, jobs, creation of new jobs and protecting the communities.
Mr Hodgson: Progressive legislation.
Mr Wood: Yes.
Mr Brown: We're missing a few buzzwords, but keep going.
The Acting Chair: Not conservative, but progressive.
Mr Brown: I think the parliamentary assistant doesn't understand the ramifications of what he's suggesting here. Is there any kind of public consultation process around the minister's stop-work order? Because that in essence is also an amendment. You are complying with the forest management plan for your area. You are complying with the work schedule. The minister comes in and says, "Stop." You're doing everything according to the plan. You're doing everything according to the work schedule. You must stop. To my mind, you've just amended the plan by asking the operator to stop, because he's complying with the plan, he's complying with the work schedule, and you say, "Stop." Is there anybody in one of our committees who says: "Minister, there isn't a problem here. Why are you requiring these people to stop?" Because it is an amendment.
Mr Wood: The minister would be making the order to prevent further damage to the forests and to prevent further damage from being done. It would be very similar to me arguing with a policeman going down the road and saying, "You must stop here." I'm arguing that, "I've driven on that road for 20 years. Why should I stop even though the bridge has been washed out at the other end?" All these things can be the unforeseen happening out there in the forests, and we've got to be prepared to be able to deal with them so that the forests are maintained on a sustainable basis. There are a lot of unpredictable or unforeseen situations that can come up.
Mr Brown: Agreed.
Mr Wood: And this section deals with that, Mr Brown.
Mr Brown: But if there is no public consultation over what "damage or loss" is, which there apparently isn't -- the minister's deciding that -- that's fine, I guess. I understand there's a need to stop someone from doing something that is not in the interests of the forest. The minister, though, has absolute discretion in deciding what that is, and to get going again, you have to go through a process of amending the plan, which means you must have public consultation.
Is there any guarantee that the ministry is willing to give to the operator a time limit, that the minister must respond within 14 working days or 15 working days or one week? Is there any requirement? Because over and over again in my constituency, one of the problems that appears at my constituency door is not, "The government is making inappropriate decisions." It's "Government isn't making any decision, and I can't wait that extra 60 days," or 30 days. "We want you to say, yes, no, this is what we can do."
The effect on the economy of having regulation without some timely response from the government agency that's regulating is often catastrophic on the very communities that Mr Wood is talking about keeping economically viable. No one is talking about doing environmentally harmful things here. We're just asking you to define them, and once you have defined them, make your decision in a time frame that's acceptable. You say, "Well, we will do our best." We want to know what your best is.
Mr Wood: If I could just make a comment or a brief question to Mr Brown, what we're saying is that if there is damage out there and it was unpredictable or unforeseen, the minister should have the right to stop that and not necessarily allow the damage to continue on while we're consulting the public and looking at it. We're saying that if there is damage that's being done that the forest can't be sustained, that work order should be there to stop immediately, and then rectify the situation as quickly as possible and get people back.
The timber EA provides for three different categories of amendments and it spells out the level and length of public consultation that's been set out by the EA board, so all of this is in line with what has been happening.
Mr Brown: We're in favour. Let's vote.
The Acting Chair: We will call for a vote immediately. All in favour? Carried.
Should section 52, as amended, carry? Comments?
Mr Brown: Well, other than to say, on section 52, as amended, for the reasons I've stated, we could not support this particular section.
The Acting Chair: So the vote has been taken. The vote is on the section, as amended: All those in favour? Against? Carried.
We will recess until 3 o'clock or right after routine proceedings. Thank you.
The committee recessed from 1211 to 1548.
The Vice-Chair: We will continue the clause-by-clause consideration of Bill 171. I understand that this morning we went as far as section 53. Is there any debate?
Mr Wood: Before we move into 53, I was wondering if we had unanimous consent to move to section 66.
The Vice-Chair: Is there unanimous consent to move to section 66?
Mr Brown: No.
The Vice-Chair: No. I'm sorry there isn't.
Debate on section 53? If there's no debate on section 53 --
Mr Brown: I have some questions. This will be brief, hopefully. It relates to whether this section applies to a section of the crown lands that are not under a forest management agreement or are not actively being forested. Is this restricted to crown units or to forest management areas, or does this apply to any crown land defined somehow as a forest?
Mr Wood: The title of the act is the Crown Forest Sustainability Act.
Mr Brown: We have sections in here that relate to private land; we have other sections that relate to matters that are not involved in crown management units. So my question is just, does this apply in a broader sense to all lands that would be crown lands, that would have trees on them and therefore would, I presume, be called forests? Does it apply? Because I think it should. I'm not arguing it shouldn't; I just want a quick answer.
The Vice-Chair: Mr Wood, do you want to comment?
Mr Wood: What we're concerned with here is the crown land; the other one, what you're concerned about, could be covered under the Public Lands Act.
Mr Brown: But I don't read it to say that. How do we know that the Public Lands Act applies in other areas? Or do both apply?
Mr Wood: The area we're talking about here, we're referring to --
Mr Brown: I think we've got an answer; I think that both apply.
Mr Wood: Section 23, licensing.
Mr Brown: No, but it doesn't say here that it has to be subject to licensing. The only area of crown forests that I can see are excluded from this act would be the provincial parks, where apparently the government doesn't believe a crown forest exists, which I find rather odd but we've had that debate. So any other place that there's crown land and it could support a forest ecosystem would be subject to these provisions. Is that not so?
Mr Wood: Just bear with me for a second. If not a crown unit under a section 23 licence, then we'd be dealing under the Public Lands Act, from what I understand.
Mr Brown: Help me again. Why wouldn't this apply to other lands?
The Vice-Chair: Mr Wood, do you want to repeat the explanation?
Mr Brown: The only crown forests I understand this act not to apply to are crown forests that are in provincial parks.
Mr Wood: Your question is basically saying, is there an overlap of that? It's possible that the Public Lands Act could apply instead of the management units, where there were no stop-order operations.
The Vice-Chair: More questions on section 53?
Mr Brown: No. Of course, we're trying to move through this as expeditiously as possible, but I don't really think that was much of an answer. But we won't object.
The Vice-Chair: We're going to vote on section 53. All those in favour of section 53? Opposed? Carried.
Section 54: Any amendments? Any debate?
Mr Brown: Just a moment.
The Vice-Chair: Mr Brown would like a moment to read it.
Mr Brown: Just one question: What happens in this case of compliance if it is not the licence holder that is in contravention? Is the licence holder required to take action? Obviously it would be an illegal act; someone would be doing it without the consent of the person who has tenure. But is the licence holder then liable for some illegal act by a third party, as they apparently are in the case of theft of the timber from the lands?
Mr Wood: Well, the main purpose of this particular section is to ensure that licensees carry out renewal work or measures to protect the forests and the environment which are required by the licence. We're really talking about compliance with the forest resource licence. Now, you're saying as to who the individual was -- I mean, whoever's doing it has to be in compliance with the forest resource licence, and then it also refers to costs involved in making sure the conditions of the licence are followed.
Mr Brown: But the crown in other sections contemplates the possibility that there will be unauthorized use of crown lands. I'm looking for the section, but it doesn't really matter. What we're talking about is a section where a third party, without the permission of the person who has tenure, has the licence, causes damage, as you define damage, to the area. Is he, the licensee, then responsible for some action by someone else?
Mr Wood: Here we're talking about a person who fails to comply with the terms and conditions of the licence. What you're probably talking about is some other section being dealt with. But in this particular section, this is what we're dealing with.
Mr Brown: Well, I realize that, but we understand that in the forest today there are times, at least the act takes account of times, when lumber or timber may be harvested without the permission of the licensee. What I'm asking you is, is the licensee responsible for those acts under this section? What I'm really saying to you is, is it the responsibility of the licensee to make sure everything that happens on that unit is his responsibility, whether or not permission was granted or whatever?
Mr Wood: Well, the person who is the agent of the licensee -- is this what you're talking about?
Mr Brown: No. I'm talking about Mike Brown going on to Len Wood's unit and harvesting some trees that you had not permitted me to take and making a mess of the environment in the process. Then are you responsible for the mess that I've created? Because you're responsible for paying the crown dues for the wood that I've taken.
Mr Wood: What you're talking about is how you deal with that through the courts, through theft or whatever. That's what you're talking about.
Mr Brown: But you, as the licensee, still pay the stumpage fee on the wood that I've stolen.
Mr Wood: This particular section deals with the licensee and the terms and conditions of the licence, section 54 that's in front of us.
Mr Brown: But the licensee is responsible for what happens on the land that he has licences on. That's the argument you made when you discussed the stumpage fees having to be paid whether the licensee took the wood or whether the licensee gave any permission to take the wood. The licensee has to pay for the timber, and if he can find the person who stole it, then he can recover that through civil action in the courts. But what I'm asking in this section is, if that happens, and presumably the act contemplates these things happening, will the licensee be responsible for the damage that is done also? He's responsible for the stumpage fees. Is he responsible for the damage done?
Mr Wood: In this particular section, I'll repeat again, we're talking about compliance with the forest resource licence. What you're talking about is another situation that I'm sure must be handled under another section.
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Mr Brown: I'm not so sure. As a matter of fact, I'm positive I'm not. This is a real possibility. If the crown believes it's a real possibility that someone can come in and take what shouldn't be taken off a crown unit without the permission of the licensee, then in that very act you're likely to cause damage. You're probably not going to be in compliance with any annual work schedule. You're not going to be in compliance with any kind of forest management plan. You're not going to be in compliance with any of that. Are you responsible for that, even though you're responsible for the stumpage? We say quite clearly you're responsible for the stumpage. Are you also responsible for the damage?
Mr Gilles Bisson (Cochrane South): Just to see if I follow where you're going, wouldn't it be the same, I would ask the parliamentary assistant on that point. The way it deals with it now is that if I pay the crown dues on an FMA unit and somebody steals my wood and somebody makes damage to the forest, we have a provision now that deals with that under the current timber management act. Wouldn't the same principles apply under the new act? I ask the question.
Mr Wood: It would be very similar to if somebody steals my car and I still owe $10,000 to the bank. I'm responsible for making the payments on it and finding a way of getting the damage fixed if there is damage done to the vehicle. There are some things that --
Mr Brown: So then if you use that analogy, you are responsible for the damage.
Mr Wood: The section that we're talking about here is compliance with the forest resource licence, and we like to think that 99% of the people out there using crown land and crown forests for creating jobs are good corporate citizens and are not going to be involved in the activity that you're talking about.
Mr George Mammoliti (Yorkview): On a point of order, Mr Chair: Wouldn't the courts decide that?
The Vice-Chair: I'm sorry, Mr Mammoliti. That clearly is not a point of order --
Mr Mammoliti: Wouldn't the precedent be set by the courts?
The Vice-Chair: -- but you're right.
Mr Mammoliti: I know I'm right.
The Vice-Chair: Any further debate on this section?
Mr Brown: Did we get an answer? Is it yes, they are responsible -- that was the last answer I think I heard -- or are they not? It's a simple yes or no.
Mr Wood: In this section, as I said about four times already, we're talking about compliance with a forest resource licence and the cost of making sure that, after harvest, that's on a sustainable basis. We're talking about compliance with the resource area. We can get into all kinds of other situations where there's theft involved and accuse people of theft or whatever, but that particular section doesn't really cover that area. I've got no further debate on that.
Mr Brown: Let's just pin this down then. If there is an instance where another operator, without permission and unknown to the person who has the licence, goes in, harvests an area that is beyond what the annual work schedule contemplates, is not consistent with the forest management plan, there is damage done, who pays for the damage that is done?
Mr Wood: You go back to section 53 of the act and that talks about repairs, the one that we just voted on.
Mr Bernard Grandmaître (Ottawa East): Okay. What is that action? Describe that action. "Take such action as the minister considers necessary." What would be that action? This is what Mr Brown is trying to get at. How would you deal with such a situation?
Mr Wood: You attempt to have the area put into a condition where the damage will not interfere with the sustainability of the forests. I guess we could talk about all kinds of different situations --
Mr Grandmaître: And who pays for it?
Mr Wood: And who pays for it?
Mr Grandmaître: Yes.
Mr Wood: The responsibility for harvesting and tree planting, the onus is being put on --
Mr Grandmaître: The licence holder?
Mr Wood: The licence holder and the companies.
Mr Grandmaître: And not really the culprit, if it's done by a third party, if this damage is done by a third party.
Mr Wood: Well, I think I would be looking for the person who did the damage.
Mr Grandmaître: Phone the OPP.
Mr Wood: You've answered your own question.
Mr Brown: But in the instance that you don't know who it is, which is quite conceivable, who has done the damage, who pays? Is the crown responsible? Is the licensee responsible? Who's responsible?
Mr Mammoliti: Mr Chairman, how long are you going to let this go on?
Mr Grandmaître: George, you've only been here 15 minutes.
The Vice-Chair: Mr Hodgson I think is next and then Mr Bisson.
Mr Mammoliti: Mr Chairman, on a point of order.
The Vice-Chair: It better be a point of order.
Interjection: What do you mean it better be a point of order?
The Vice-Chair: It better be a better one than the earlier one.
Mr Mammoliti: Mr Chairman, hear me out. Here we've been at length on something that I think would be the responsibility of the courts or of the police department. Mr Brown is asking for an opinion from the parliamentary assistant on something that obviously he doesn't have jurisdiction over.
The Vice-Chair: Your point of order is?
Mr Mammoliti: The point of order is, let's get on with it. Let's deal with it.
The Vice-Chair: That is a point of order. However, as I indicated repeatedly during this clause-by-clause consideration, it is the custom of the committee to give a reasonable amount of time to any member who wants to ask questions, and then we will move on. As I indicated earlier this morning, if there's too much repetition in terms of the question and answer, I do think we should move on. But frankly it is very flexible. Mr Hodgson is next.
Mr Hodgson: As the record will note, I've been very expeditious and lean in my comments here at today's proceedings, but I kept noticing that some members are delaying this unnecessarily on points of order. I would like to point out that I haven't spoken on this because I've been in agreement with Mr Brown, but now I'm confused. I do have one quick question to the parliamentary assistant. That's on third-party licensing.
I thought the reason why we were allowing third-party licensing and having sort of the -- if there is a problem, there's a dispute mechanism now where they have the recourse to go before the minister. On damages, it was my understanding that third-party licensing was brought in to make it so they would be responsible.
Mr Bisson: But this is a different issue. He's saying --
The Vice-Chair: Mr Hodgson has the floor.
Mr Hodgson: Thank you, Mr Chair.
Mr Wood: We're having a dispute settlement mechanism for people who were traditionally holding third-party agreements, but in damage being done, as I said to Mr Brown earlier, in section 53, all the way through there you're talking about a person who causes damage in every particular area.
Mr Hodgson: They're going to be a licence holder, a third-party licence holder, so they would be accountable for the damage is the way I understood it, because you're taking away some rights from the first licence holder, and the compensation to the first licence holder is now that the third licensee would be accountable for that damage is the way I understood it. I'd just like to know if that's true, because technically they're a licence holder now.
Mr Wood: To me, it's quite clear that section 53 deals with the damages and section 54 means compliance with the licence holder.
Mr Hodgson: That's the way I read it and I just wanted to make sure I was clear on that. If you want to consult with your legal staff for two seconds, it wouldn't bother me, but that's up to the Chair's leniency. I know we're in a rush here.
The Vice-Chair: I'm glad you recognize that.
Mr Wood: Time is of importance.
Mr Bisson: Just for clarification, and maybe the parliamentary assistant could answer me, presently under the timber management act, if you're the FMA holder and I go and steal your timber, you would end up paying the crown dues, question number one, under the current timber management act, and would not the same apply under the new act? And on the question of damage, my understanding now is that in the timber management act, if I do damage to your FMA holding, the crown would then come after me, not you, and would the same be true for the new sustainability act?
Mr Wood: Section 53 is referring to the person who does the damages, yes. The person who does the damage is the person that you would go after.
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Mr Brown: And if you don't know?
Mr Wood: Mr Brown is saying, well, if you don't know who is doing the damage. There are not that many people out there who are going to move around heavy equipment that is going to do that much damage and nobody is going to be aware of it. You talk about harvesters out there now that are close to $1 million, between $700,000 and $1 million, and all the heavy equipment. I'm sure that a lot of people are going to know what activity is taking place out there.
The Vice-Chair: Okay?
The Vice-Chair: Mr Hope.
Mr Hope: I was going to raise a point of order, Mr Chair, but I thought I'd do it this way. The question Mr Brown keeps asking is, who's going to pay? Mr Wood has clearly indicated in subsection 53(3), it clearly indicates the court shall direct on who's to repair the damages or prevent further damages. It's very clear in subsection 53(3) of the act. I'm having a hard time, and I pose this to you as the Chair of the committee, in the direction of the line of questioning. Asking who pays has been already dealt with in section 53. When his questioning brought forward to question --
Mr Brown: No.
Mr Hope: Don't shake your head no. It is. It's written right there in black and white. The other one, in section 54, deals with compliance with the forest resource licence. The questioning that is being posed by Mr Brown is dealing with a different section than what exactly we're talking to. I was going to raise this on a point, but I thought I'd go through the direction of the Chair, being a little bit more cooperative.
Mr Hodgson: He's stalling.
Mr Hope: No. I mean, I don't mind the questioning that's being raised, but if we're talking about who pays for damages caused, or stealing or doing whatever, it is clearly identified in subsection 53(3) of this legislation. It's written there: "...action as the court directs to repair the damage or prevent further damage" is clearly indicated in that section. When he's talking about the licence and who's got to pay, that was dealt with before.
I'm just asking through you, Mr Chair, the questioning that is being asked about who pays. The other questions that are being asked are okay, but now about who's paying is left in the court's hands, if they can find the person, or whatever needs to be inquired in an investigation, in theft or whatever, is dealt with in the previous section. I don't mind the conversation. I know opposition have a role and responsibility in the committees, but to ask pertinent questions of the sections versus questions that are relevant to a previous section that's already been voted on.
Mr Mammoliti: Yes. Stop rambling on.
The Vice-Chair: In terms of asking a question of the Chair in this regard, clearly there are divergent opinions, and therefore certainly the question that Mr Brown had asked is quite legitimate. You may feel different about the answer having been given, but clearly Mr Brown felt that the answer that had been given was not satisfactory to him and he was looking for further information. Again, I think we can only move ahead. If the questions and the answers become too repetitive, never mind the content of it as far as the Chairman is concerned -- we haven't quite reached the stage of that yet, but we will be reaching it very soon. Mr Brown.
Mr Mammoliti: How soon? Another five minutes?
Mr Brown: I bring members' attention to section 37, which we have passed. It very clearly states in that section that crown charges in respect of forest resources have to be paid for, whether or not the licensee harvested the resource or whether or not the person had permission to harvest the resource. It doesn't matter. It doesn't matter at all. And the reason, if I can recall the conversation on that section -- the government insisted upon that -- is that because they can't be out in the forest all the time, they can't be watching everything that happens, they don't want Mike Brown, as the operator, to say: "Oh, well, I didn't do that. Somebody came in and did that, took that timber away, and I don't have to pay the crown dues on that because somebody else must have taken that. It couldn't have been me." What the section says is, "Well, you've got to pay for it anyway, Mr Brown, and if you can find the person who actually took it, then you can try to recover that through some kind of civil action." That was your argument there.
I'm suggesting that if the licensee, using those arguments, is not responsible for damages, then the crown may be in a position where they're running around in circles, because the licensee may say: "I'm not responsible for those damages. I didn't do it. Someone else did." Some mysterious third party actually did the cutting there or did whatever damage.
I think one of the problems we're having with this act is that we're not talking about timber only. At least that's what the parliamentary assistant speaks to. There are a lot of other activities that may be going on in that forest and probably are going on in the forest that go on despite timbering, having nothing to do with timbering: for example, hunting; for example, hiking. It could be that some well-meaning but uninformed person perhaps builds a bridge over a stream so that they can --
Mr Hope: On a point of order, Mr Chair: Mr Brown made reference to section 37. There was an amendment also put forward -- I noticed he was reading the bill -- which clearly indicates the rights of actions in that piece too.
The Vice-Chair: Mr Hope, your point of order is?
Mr Hope: I was just bringing to your attention that section 37 has been amended and it does clearly indicate what Mr Brown is bringing forward, ie, he's only read part of the act in this book; he's not read the full amendment.
The Vice-Chair: Mr Hope, if you wish to participate in the debate, you are of course welcome to do so, but you will have to do that under the regular fashion and not under a point of order. Do you want to be on the speaking order?
Mr Hope: Yes.
Mr Brown: Mr Chair, I didn't read the whole section, but I clearly indicated what the amendment was, and the amendment was they could pursue the crown charges. That's what the amendment says.
Mr Hope: The holder of the forest resource licence, who shall pay --
Mr Brown: Exactly.
Mr Hope: Read it first before you comment on it.
Mr Brown: I think Mr Hope has the reading problem.
I come back to the point that there are other people in the forest --
The Vice-Chair: Just a second. Let's just establish some sort of order again in the speaking. Mr Hope, have you finished your intervention?
Mr Brown: That was a point of order.
The Vice-Chair: No. You had finished your --
Mr Brown: No, I hadn't. You accepted a point of order from Mr Hope, which I didn't hear.
The Vice-Chair: Actually, I thought you were finished with your comments and I gave the floor to Mr Hope, but in any case, Mr Brown is back.
Mr Mammoliti: You haven't heard his point of order yet.
The Vice-Chair: No, I already ruled that this was not a point of order and that if he wished to be on the speaking order, he was welcome to do so.
Mr Hope: And now you're back to Mr Brown.
The Vice-Chair: Right, and I thought I was coming back to you, because I thought Mr Brown was finished. Anyway, Mr Brown.
Mr Brown: We look at this act too narrowly if we believe it is only about timber management. If it is only about timber management, then we should have said so. If there are third parties in the forest who cut down some trees, not for the purpose of harvesting the trees but for the purpose of building a bridge over a stream, for access to a camp or for access to hunting and fishing, for whatever, are they responsible under this act to pay the damages? Yes or no?
Mr Wood: In section 53, you're talking about the person who does the damages, and it refers to that all the way through in section 53. Even in section 54, the one that we're dealing with now, you're talking about compliance with a forest resource licence. Your comment about trees not being the only thing out there in the forest is quite true. All through the act we're talking about the sustainability of the crown forests and we're talking about "damage to water, soil, plant life or habitat for animal life in a crown forest." All these areas are being covered.
The Vice-Chair: Okay, Mr Hope.
Mr Hope: Mr Brown brought up section 37. The rationale for the amendment that was brought forward, which Mr Brown did not read, is that the forest industry had expressed concern that if they were to be responsible for the crown charges on the area of their licence, even if somebody acted without their permission, they should have some rights of actions against the wrongdoers. We provided that in this legislation under section 37, which is amended, which you haven't read, and then you said --
Mr Brown: Mr Hope, that's what I said.
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The Vice-Chair: I'm sorry, Mr Brown, but Mr Hope has the floor.
Mr Brown: You'd better check the Hansard.
Mr Hope: I listened very carefully. I sat here and listened to your conversation, and you make reference to who pays. The payment was already made, but who will get redress is already taken care of in the section before that under section 53(3), which says the court determines if it's the wrongdoers. You're raising a concern about who pays and about the actions of the individuals who have already paid the fees. That has been provided in section 37. So to answer your question of the industry's concerns, the industry's concerns have been addressed with an amended 37 which has been brought forward. I suggest that you read it. The explanation is there of why that amendment was put forward.
That's all I can say. We could run around the corner of who's going to pay what and hypothetical views, but as far as the industry is concerned, the industry's concerns about wrongdoers were taken care of in a previous section called 37, which was passed, which you probably voted against but we've passed. We made sure it was brought in for the protection of those people you currently are raising concerns about who pays.
The Vice-Chair: I think perhaps we're getting close to being ready to vote on this.
Mr Brown: I was just going to suggest that I don't disagree with Mr Hope's reading of section 37. All I'm asking is, is that consistent with section 54? I don't think there's any difference of opinion between what happened in section 37 and what I articulated. All I'm asking is, does that apply to this section? Is the thinking to be consistent?
The Vice-Chair: I think the question has been asked and the answer has been given several times, so perhaps we are ready to vote on section 54.
All those in favour of section 54? Opposed? Carried.
Section 55: Mr Wood, you have an amendment.
Mr Wood: Yes. I move that section 55 of the bill be amended by adding the following subsection:
"Forestry futures trust
"(8) If the forestry futures trust is established or continued under section 48, penalties imposed under this section shall be paid to the forestry futures trust."
The intention of this amendment as brought forward is to ensure that the administrative penalties are used to improve the forest conditions out there rather than going into a general treasury. The reason we brought forward the amendment is, as I said, direct administrative penalties go back into the forestry through the futures trust as a mechanism to support sustainability of the forests.
Mr Hodgson: This is a question to the parliamentary assistant. During the public hearings, as you are aware, and when we travelled across northern Ontario and again back in Toronto, on this section there was a concern that we're not taking into account sort of the scale of operation under this. If you have a large licence area and you commit one or two infractions, the fines will escalate up, whereas if you had a small area and you commit half as many, you might actually be violating it to a greater degree per scale. A lot of the large licence holders might have 10,000 or more hectares, or hundreds of thousands of hectares. They might have maybe 20 offences. Well, they would face the maximum, what, per hectare? They might be actually complying better than somebody with a smaller licence holding. Has that been addressed?
Mr Wood: On this particular section I'm going to get some assistance. If there are a number of questions that we have on that, I'm going to ask Stuart to come forward.
Mr Hodgson: Okay, because that was a concern that came up numerous times and I just wondered if it's been addressed.
Mr Wood: I don't know if you have any other questions. Maybe he can address them at the same time.
Mr Stuart Davidson: My name is Stuart Davidson. I'm legal counsel with the Ministry of Natural Resources. In terms of that particular concern, what the ministry is doing is that we're developing a compliance policy or guidelines in consultation with the industry. We're just sort of at the beginning of that process. Your particular concern may be addressed within that compliance framework. I don't think it would be possible to address it within the legislation itself.
Mr Hodgson: Okay. That's all I asked.
Mr Brown: I would just say that we believe this amendment is a good amendment, that it's useful to have those penalties put into the forestry futures trust and that's appropriate use of the penalty money. One brief question -- it's not really legal in nature, I don't think: The penalty is just a penalty here; the government would have deducted any costs that may be associated before the money went to the futures trust, or am I wrong in saying that it's just the penalty? Often clauses invoke also for cost. The cost part doesn't go to the futures trust, I take it.
Mr Wood: Once again I prefer to refer this to our legal person, Stuart Davidson.
Mr Davidson: I'm a little confused by what you mean by the word "cost." Do you mean the costs of imposing the penalty itself?
Mr Brown: Say there are court costs involved, administration costs.
Mr Davidson: No. The entire penalty would go into the trust fund itself.
The Vice-Chair: Are we ready to vote on this amendment? All those in favour of Mr Wood's amendment? Opposed? Carried unanimously.
Shall section 55, as amended, carry? Carried.
Section 56: Mr Wood, you have an amendment.
Mr Wood: I move that subsection 56(2) of the bill be struck out and the following substituted:
"Approval of LG in C
"(2) The minister shall not, without the approval of the Lieutenant Governor in Council, cancel or suspend a licence granted under section 23."
The industry has expressed concern that the minister had too much discretion in being able to suspend a licence, and what we've done is address those concerns. The motion provides that the approval of the Lieutenant Governor in Council be required to suspend or cancel licences under section 23.
Mr Grandmaître: Who gives the power to --
The Vice-Chair: I'm sorry. Mr Hodgson is next.
Mr Hodgson: Could you explain to the committee and to the people who might be reading Hansard what the change is here in practical terms?
The Vice-Chair: Did you want to ask Mr Davidson?
Mr Wood: Yes.
Mr Davidson: Your question was, what's the significance of this?
Mr Hodgson: Yes, what's the difference? Practically, how will it change the nature of the act, just for the Hansard?
Mr Davidson: The difference is, this means that before the minister can cancel or suspend a sustainable forest licence, a section 23 licence, he has to get the approval of the Lieutenant Governor in Council, which is appropriate because the licence was granted with the approval of the Lieutenant Governor in Council. So in a way, this could be seen as a limit on the minister's discretion.
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Mr Hodgson: In practical terms, how does that work?
Mr Davidson: How it would work is, the minister would give notice to the licensee that he intended to suspend or cancel the licence. The licensee would have an opportunity to make representations to the minister, which he would consider, and then he would make a recommendation to the Lieutenant Governor in Council for the cancellation or suspension of the licence. That recommendation would also include a synopsis, if not the actual representation itself, of the licensee and then the Lieutenant Governor in Council would consider whether or not the licence could be suspended or cancelled.
Mr Hodgson: Could I have a follow-up question, Mr Chair? Is this amendment designed to make the bill consistent with who granted the licence or is it designed to put a check on the minister's power?
Mr Grandmaître: Or put a check on the Lieutenant Governor.
Mr Hodgson: Or put a check on the Lieutenant Governor? You've suggested it's to put a limit to the minister's power, but surely it also just makes the bill consistent with who's granting the licence in the first place.
Mr Wood: There was a concern out there and a request that we do put some language in there that would water down the authority the minister had. The industry out there has expressed the concern that the minister had too much discretion about being able to suspend a licence for up to six months, and this is the language that has been adopted and brought forward to us.
Mr Hodgson: I'm aware of that, Mr Wood. A large segment of the people who came before us on the public hearings talked about the minister having too much discretionary power. This amendment might be necessary as an amendment, but I don't think it does much to really address those concerns. This isn't really a check. What they were asking for was that before the minister could revoke somebody's licence, it be like an agreement, where both sides had to go before maybe a court or have a citizens' panel. The recommendations varied all over the map on how they wanted to limit the minister's power. This, practically, doesn't limit the minister's power very much, but it might be a necessary amendment for consistency within the act. That's all I wanted to get at.
Mr Brown: Just so I can be clear, it seems to me the only difference between this and the bill as originally drafted is that it takes away the minister's discretion to act without the authority of the Lieutenant Governor in Council for suspensions of less than six months. This takes away the minister's discretion to say, "You've been a bad boy and we're going to take your licence away for six months," without the Lieutenant Governor in Council agreeing.
Mr Wood: This is the explanation I gave at the beginning, yes.
Mr Brown: That's just really what we're doing.
Mr Wood: Yes.
Mr Hope: If everybody's in agreement now, I think the important part is the removal of the more than six months. It's too definite a time, which could have major economic impacts to a community. That is a very important step. I mean, somebody may have done wrong, but to have an automatic six months, that's just like closing a major industry down.
Interjections.
Mr Hope: It's in there.
The Vice-Chair: Are we ready to vote on the amendment?
Mr Wood: Let's vote.
The Vice-Chair: Generally, there seems to be agreement.
All those in favour of Mr Wood's amendment? Opposed? Carried, again unanimously. We're making good progress.
Further comments, questions, amendments to section 56?
Mr Brown: Just so that we all understand this, is it the ability to suspend or cancel licences now -- all the sections in subsection (1) are now subject to an order by the Lieutenant Governor in Council, which should give at least some degree of comfort to operators that were concerned that the minister could act unilaterally and arbitrarily. Now at least the minister must take his case before cabinet, which is effectively what the Lieutenant Governor in Council is, before he can impose any suspension or cancellation. Is that right?
Mr Wood: That's right.
Mr Brown: In the past, under the Crown Timber Act, how many suspensions or cancellations have there been? Historically, these are rather radical remedies to situations. Does anybody, historically, know? Or were suspensions permitted under the Crown Timber Act?
Mr Wood: I understand that the minister had the authority to shut down an operation, but no ministers were ever willing to stick out their necks to that point of shutting down an operation that could basically shut down a complete town. This legislation is different in the sense that it's got different ways of dealing with that aspect --
Mr Brown: But did the Crown Timber Act provide for suspensions? It did. And were suspensions, historically, ever sought or granted? Mr Wood makes a good point that it is a very radical enforcement tool to suspend or cancel a licence. There are livelihoods of a huge number of people at stake.
Mr Wood: I don't have any examples, Mr Brown.
The Vice-Chair: Okay. Are we ready to vote then on section 56, as amended? Shall section 56, as amended, carry? Carried.
Section 57: Any comments, questions, amendments?
Mr Brown: It's a long section. Maybe you would like to give us a moment to read all of this.
The Vice-Chair: A moment, yes.
Mr Wood: There are no amendments to that section.
The Vice-Chair: Are we ready to vote, then, on section 57? All those in favour of section 57? Opposed? Carried.
Section 58: Mr Wood, you have an amendment.
Mr Wood: I move that subsection 58(1) of the bill be amended by adding at the end "if forest resources are, or are reasonably believed to be, stored or processed on the private land."
Mr Wood: Yes. Just briefly, this section deals with the entry on to private land. The motion limits the right of the entry on to private land for inspections carried out for the purposes in the act. It restricts the right to those private lands where forest resources are, or are reasonably believed to be, stored or processed. The motion is proposed to provide more clarity to the intent of this subsection by restricting the right of entry to those lands where forest resources are stored or processed, or reasonably believed to be stored or processed.
It was felt by some that the section provided too much latitude to enter on to private land, despite the qualifying nature of subsection 58(2), which sets out when a search warrant is required.
Mr Brown: I favour the amendment in that it does somewhat restrict the actions, on private land, of the crown. But as the opposition I believe should do, we always are very concerned about giving crown agents or crown employees entrance on to private land under virtually any circumstances without any check or balance. I would wonder why the government would not be seeking to make this subsection 58(1) subject to the same constraint as subsection (2), where you at least have to approach a court and convince it of the reasonableness of your case before you trespass on to private property. This still permits an agent of the ministry to move on to private lands without any authority. His only restriction is that he "reasonably believes," which I guess he or she determines, that there might be some timber stored there.
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We have to take very seriously the protection of private lands, and I'm just wondering why we would not subject these to the same requirements that we do in (2).
Mr Wood: We just don't believe it's appropriate that you should have to get a warrant for every inspection. You should be able to do an inspection without necessarily getting a warrant for everyone.
Mr Brown: Why? It's one of the proud traditions of any British common-law country, the sanctity of private lands. Any entrance by an official of the crown for any purpose is always looked at as suspect under our system. We're wondering why that person would not have at least the assurance that you would have to present your case to a justice of the peace to have a search warrant granted. It's a serious issue. We're not talking about inspections or routine inspections. In order to do this, you have to have reason to believe there's a problem.
Mr Wood: I'm trying to help clarify this a little bit further. In subsection 58(1) you're dealing with going on to private land for inspecting for the purpose of this act, and in subsection (2) you're talking about going into private buildings where it says -- this is under the section -- that a search warrant should be issued. So both those areas are covered: It could be private land and also under private buildings.
Mr Brown: I understand that. I'm just wondering why there's a differentiation between dwelling and land. Does this mean, if I'm an inspector or some official or agent of the crown, that I can go into a private office, it not being a dwelling, and I would have the authority to do that without any authority in terms of the search warrant?
Mr Wood: I think, Mr Chair, if I could, I would look to our legal person, Stuart, for a legal opinion on what Mr Brown has asked for here.
Mr Davidson: Mr Brown, when we were drafting this section, we were cognizant of the concern that you've expressed. We began consultations, constitution-wide, with the Attorney General's office and we began looking at the case law. Essentially, what we have is a balancing between the right to privacy, which is associated with a dwelling place, which is why a warrant is required in that instance, and the practicality of going to court to obtain a warrant for all inspections, most of which are contemplated under this act to be routine inspections.
We then consulted with the Attorney General's office. It has a list of inspection powers. We then selected an appropriate one -- appropriate, we felt, for these circumstances -- and placed it in the act as originally drafted. As Mr Wood, the parliamentary assistant, has mentioned, in response to the public hearings we felt that we could further narrow our inspection power. If you were to compare this inspection power with similar inspection powers in other pieces of legislation, I think it's narrower and we're more finely attuned to the balance of the two concerns that we have to deal with.
The Vice-Chair: Does that respond?
Mr Brown: I accept that. If you could just clarify, does this mean that there would be opportunities to search an office, for example? The inspection just wouldn't be looking at the wood and saying, "Gee, that was scaled wrong," or, "You didn't pay your fees on this, that or the other thing"? It would give the agent the ability to go into an office and to look through the files to check the lading bills or whatever, stumpage fee payments, all that sort of thing, scaling records?
Mr Davidson: That is correct. When we were looking at that situation, we balanced the expectation of privacy with the need maybe to see the bills of lading or the things necessary for the audit requirements in the act. That's how we decided to proceed.
Mr Brown: But if the office happened to be in my home, then the search warrant is required?
Mr Davidson: Because you would have a higher expectation of privacy for your home than, say, a business office.
Mr Hodgson: I just want to get on the record on this thing that I support this amendment. I've had quite a few calls since we went into the public hearings from people concerned for the rights of their homes and things like that. This clarifies that and I welcome the amendment.
The Vice-Chair: All those in favour of Mr Wood's amendment? Carried.
Any further amendments or discussion on section 58? Seeing none, shall section 58, as amended, carry? Carried.
Section 59. Amendments or questions?
Mr Brown: This section 59 just says you can look at the records, but in order to look at the records you have to have complied with 58?
Mr Wood: Yes.
The Vice-Chair: All those in favour of section 59? Carried.
Section 60.
Interjections: Carried.
The Vice-Chair: I know we're on a roll, but -- Mr Hodgson?
Mr Hodgson: I was just going to suggest that I had to read this. I hope the government's not suggesting it can bring closure in at this committee level. I think they have to make application --
The Vice-Chair: Mr Hodgson, did you have a question?
Mr Hodgson: No, I don't, Mr Chair; I'm trying to read this.
Mr Wood: I'm satisfied with the speed that we're moving along at. It looks very encouraging.
Mr Drummond White (Durham Centre): At the moment.
Mr Wood: At the moment.
Mr Brown: Perhaps it would save Mr Hodgson and me some time if somebody would just explain the reason for this section.
The Vice-Chair: Anybody wish to do that? Mr Wood?
Mr Wood: Yes. This section reinforces the ministry claim to forest products where crown charges have not been paid. Normally, this would be applied in a situation where a company had declared bankruptcy, for example. Some of the other experience has been that in these situations the crown's ability to collect unpaid crown dues is seen as secondary to other claimants. The ministry does not normally have a significant problem with collection of overdue crown charges; they are usually paid.
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The Vice-Chair: Any further debate? Fine. All those in favour of section 60? Opposed? Carried.
Section 61. Mr Hodgson, your amendment is the first one to be discussed. It's number 66 in our bundle.
Mr Hodgson: I move that subsection 61(3) of the bill be amended by inserting "alleged" before "offence."
The Vice-Chair: No, number 66 would be first, please.
Mr Hodgson: Oh, 66. Subsection 61(1.1). Thank you, Mr Chair.
The Vice-Chair: I'm not talking about section 66. I'm talking about the amendment, the page that's --
Mr Hodgson: I've got you, yes.
I move that section 61 of the bill be amended by adding the following subsection:
"Same
"(1.1) A holder of a forest resource licence who,
"(a) fails to comply with an order made under clause 52(a) is guilty of an offence and on conviction is liable to a fine of not more than $1 million;
"(b) fails to provide information to the minister or to an employee or agent of the ministry as required under this act or the regulations is guilty of an offence and is liable on conviction to a fine of not more than $10,000."
This is self-explanatory. In general, what we're talking about is that licences are what are granted by the crown. They're not granted to individuals. If it is, that's fine, but in most cases they're granted to corporations or companies. Really the only correction here is that instead of saying "A person," it's the holder of that forest resource licence. It doesn't necessarily have to be a person.
Mr Brown: I'm having a little trouble following that, the reason. This is a new subsection to section 61 and would be in the act before the subsection (1) that is presently there.
Mr Hodgson: Right. They've got "A person who" and this makes it so it's "A holder of a forest resource licence" as well.
Mr Wood: We feel that this amendment is not necessary because it looks like it's repeating clauses 61(1)(d) and (g). As a result, we won't be supporting this amendment.
Mr Brown: I'm still having a little difficulty and maybe Mr Hodgson could help us a little further with it.
Mr Hodgson: It's been a while since I made this amendment, but let me try on this. I believe the thinking at the time was that we wanted to make it clear that we're talking about a holder of a forest resource licence as well as just a person who meets (a), (b), (c), (d) (e), (f) and (g).
Mr Brown: If I could just ask you a question about that, within the meaning of legislation doesn't "person" mean a corporation? Not being a lawyer, I understand that "person" does mean a corporation or can mean a corporation in our law.
Mr Paul Wessenger (Simcoe Centre): Yes, under the Interpretation Act, that's correct.
Mr Hodgson: Right.
The Vice-Chair: Are you ready then to vote with these explanations?
Mr Hodgson: Fine, yes.
The Vice-Chair: All those in favour of Mr Hodgson's amendment? Opposed? Lost.
Mr Brown, your amendment is next since it was delivered earlier than the Conservative motion. It's the one at the top, 67.
Mr Brown: Is that the proper order, Mr Chair?
The Vice-Chair: I'm advised that yes, it is.
Clerk of the Committee: I'm sorry; my mistake. This is for the whole section 61.1. So now we would go back to Mr Hodgson's to subsection (3), which is this one here, 65.
The Vice-Chair: Okay, 65. Mr Hodgson, you have an amendment to subsection 61(3).
Mr Hodgson: I move that subsection 61(3) of the bill be amended by inserting "alleged" before "offence."
The Vice-Chair: Comments?
Mr Hodgson: You want comments?
The Vice-Chair: If you want to give them; you don't have to.
Mr Hodgson: Let me take one second while I read this.
Mr Wood: Maybe I could be helpful, Mr Chair.
The Vice-Chair: No, I think we should let Mr Hodgson speak to his own amendment.
Mr Hodgson: I believe it's self-explanatory, Mr Chair.
Mr Wood: Briefly, we support in principle what you're saying, but interpretation of offences includes the concept of alleged offences. So we won't be accepting the amendment as brought forward.
The Vice-Chair: Further debate?
Mr Brown: I'm happy that everybody else understands it.
The Vice-Chair: Everybody ready? All those in favour of Mr Hodgson's amendment? Opposed? That is lost.
Shall section 61 carry? Carried.
Now, I understand, Mr Brown, you would like to move a new section.
Mr Brown: I move that part VIII of the bill be amended by adding the following section:
"Industrial forest land base
"61.1(1) A forest resource licence shall specify the land that constitutes the licence's industrial forest land base.
"Compensation
"(2) The minister shall establish a mechanism to compensate the holder of a forest resource licence for loss of past capital investments if the licence's industrial forest land base is reduced."
Mr Brown: Yes. The reason for this amendment is one that I think we all can accept, and that is the concept that if a person is paying to provide capital investment -- we have to remember that under these forest agreements and under the crown units people make huge investments at times in roads and other physical improvements to the area in order that they can carry on their activities. If for some reason that land is withdrawn from the licence and the harvest is not able to be completed, it only seems to be equitable to refund the money or have some mechanism to return that capital investment to someone who has not had the ability to use it.
In this scenario, when we talk about trees we talk about 60, 70, 80, 90, 100 years, maybe more, depending on the species, to renew that species. It is conceivable that a corporation or a person has made a huge investment too in roads and in area charges in a large number of areas over the period of 60 or 70 years and it is quite conceivable that in the 69th year, the year before that corporation is about to harvest, for some other reason that land is withdrawn from the industrial forest land base. It does not seem a reasonable thing to do to not compensate for that loss of capital and for that loss of investment.
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Mr Wood: First of all, we will not be supporting the amendment as brought forward by the Liberal Party. The amendment, from what I can gather, suggests licensing of land use, and this act licenses the use of the resource. A subsection requiring compensation would restrict the minister's powers to manage allocations of land to various uses. The subsection could also be used to restrict opportunities for other licensees. Those are the reasons why we will not be supporting the amendment as brought forward.
Mr Hodgson: I'll be supporting this friendly motion; I've proposed one as well that reads exactly the same. I think this is a positive step. There's going to be multi-use of the forest, and we want to sustain it as an ecosystem as a whole. As we get more information -- and it was right from the word go, when we first started these committee hearings, that this was going to be an ongoing process -- as we gather more data on what makes ecosystems sustainable, that's going to change the nature of what areas we use in the forests for which operations.
If somebody goes out and they make a lot of investments based on a plan that's only five years, there should be some compensation if we come along and, through no fault of their own, no fault of their investors, they find that because of new research or new techniques, or just because that's what the will of the people is, they're going to lose their industrial land base or a portion of it. They should have some mechanism of recourse to compensate these investors, or whomever, who in good faith were told that they had this much timber they could extract and through no fault of their own, not through the fault of the operations or anything, their land base has been limited.
There should be some mechanism that maybe somebody else will pay that if we use it for another use. If we decide that blueberries have a higher market yield one year and that's what they want for their five-year plan, somebody should be compensated from that revenue.
Mr Wood: The only explanation I would give is that both the amendments that have been brought forward by the Liberals and the Conservative caucus -- it's true, they're identical. You're talking about licensing of land use, and this is not the intention of the act. The act is intended to license the use of the resource out there, and this is what we would like to see continued all the way through the act rather than referring to the industrial forest land base, which has been suggested in the amendment.
Mr Brown: I'm having a little difficulty understanding that rationale given that the resource must, of necessity, be on land. It seems self-evident to me that the capital that is expended on the resource, which essentially is what it's expended on, can't be withdrawn without compensation being given. After all, we are asking under this act -- and it's a reasonable thing to ask and it's a proper thing to ask -- that people who harvest the resources that belong to the people of Ontario must replace those resources. That's really what this whole act is about, or is supposed to be about.
Mr Wood: Yes, sustainability.
Mr Brown: I can tell you in boardrooms and in family kitchens in the smaller operations, the willingness to make the investments depends on people's ability to have tenure. I think we've all agreed on that. People, if they know they can use this resource down the road, are willing to make those capital expenditures that they need to make in an appropriate and proper way. If, on the other hand, the crown can come along and allocate the resource to someone else or can allocate the resource to a different use without compensation, people are going to be unwilling to be the good fellows the parliamentary assistant wants them to be.
You are creating uncertainty in the private sector by not telling them that if you withdraw the resource from them, you're going to compensate them. After all, you've got to pay area fees. I was going to do this some day, but I've never sat down to do it. If you looked at the area fees, for example, that a company would pay over the space of the average productive life of a tree, which may vary from 60 to 120 years, the area fees paid on that tree, I would suspect, would be far higher than the actual stumpage over the space of 120 years.
If you withdraw the resource in that area from a company at some point in the future, it would seem to me that a reasonable person would say: "You have spent that money over the space of decades. You have some right" -- well, you have more than a right. We have an obligation as the crown to reimburse you for something you have paid for but now you're not getting.
Mr Wood: Just briefly, the last six or eight months has seen the largest investment in new operations and expansion throughout northeastern and northwestern Ontario. Next year the prediction is that you're talking around a billion dollars of investment of companies that are willing to come into this province or that are in this province and are willing to go out and harvest the trees and replace them on a sustainability basis and reinvest and are not really concerned with what you have raised that much, knowing that this is a renewable resource that can be and will be out there for jobs, for the communities. They can use it for investment in their operations, expanding operations. This has happened on a big scale. We've had somewhere between $500 million and $600 million that has been committed to be invested and there are further announcements almost weekly of companies that are making investment and expansion plans.
So to say that if we don't accept the Liberal amendment or the Conservative amendment there's going to be uneasiness out there on the part of the companies -- Where is their future tenure? -- I haven't got that indication from the companies or the investors or the people out there who are making those investments and are committed to making them next year.
Mr Hodgson: I'd just like to follow up on the parliamentary assistant's comments. He's right that the forest industry has had a rough time in the last number of years and it's just starting to revive itself. I'm very encouraged to hear that people are starting to invest back in the forest industry.
I hope this new act won't change that trend. They've done this under the old Crown Timber Act, all this investment, and now we're going to introduce a new bill. We want to make sure that -- you've mentioned the last year. That was done under the old act.
Mr Wood: No. It was done under the new act.
Mr Brown: There is no new act.
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Mr Hodgson: This bill hasn't been enacted yet. We're still in committee. Unless I've missed something, this is what we're working on right now, to pass that.
Interjection.
The Vice-Chair: Mr Hodgson, you have the floor.
Mr Hodgson: Thank you, Mr Chairman.
The Vice-Chair: We're working on Bill 171.
Mr Hodgson: Correct, and all this investment that we've heard about in the last year has taken place under the old act. I hope we don't discourage this kind of investment for the future. This act isn't just for today. The last act lasted 40 years, and if we do this right, this will be in place for a number of years. It's supposed to be enabling legislation.
All we're asking for is maybe the option -- it's going to have to be dealt with at some time -- of a land use plan. The local citizens' committees will come up with their five-year plans and multi-use plans, and forest manuals will dictate how they're used and how they're carried out, but there should be some thought given to compensation, because with changes there are going to be winners and losers. I'm not asking the Ontario taxpayer to pick it up, but there should be some form -- if you dedicate land away from forestry, the crown's losing the stumpage fees and the area charges. That could be picked up with another user. There should be some kind of compensation, though, given to people you mentioned, all the new investment that's come in in the last year.
Mr Wood: Six months.
Mr Hodgson: The last six months, under the old Crown Timber Act. Now that we're bringing in the new forest sustainability act, we don't want to shut the new investment and new jobs off. That's why we're taking our time on this and we'd like to see some recognition of an industrial forest concept taken into account and maybe look at the idea of compensation.
Mr Wood: Your comment is that the investment is under the old Crown Timber Act. We have to be up front, and people were aware that over the last eight or nine months there have been negotiations taking place on new business relationships with the understanding that the new legislation would be tabled in the House, first reading, second reading and public hearings and debate out there and amendments, if required, with consultation with the stakeholders out there. This is the period of time that I am talking about when we've had massive investment in the province of Ontario, in northeastern and northwestern Ontario. People were not unaware that the legislation was going to be brought in, tabled, and the commitment was that we were going to do everything within our power, unless we lost our majority in the House --
Mr Hodgson: What took you so long to bring in the act? We should have done this three years ago.
Mr Wood: -- to have the legislation finalized by Christmas. So this indication has been out there, we've been talking about this since March, and that's when the investors started making all the announcements, the major announcements. They're even committed to making double that next year, knowing that the new legislation was coming forward and would be there.
Mr Brown: If I understand this correctly, the government opposes paying compensation for capital investment that is made in good faith and then removed arbitrarily by a government. This isn't a zoning issue like in planning, and we sometimes have difficulty with that. This is where you are paying a fee for a specific purpose; you have been granted a licence for a specific purpose. If the government takes it away before you're allowed to exercise your licence rights, all we're asking is, won't you compensate for that?
There's no suggestion here that there should be any kind of punitive damages for taking that away. We're just saying, can't you compensate for the capital that was invested where in good faith I believed or the company believed that I had every right to use this property under my licence? I think it's only reasonable that that happen. It could be that the government has reallocated part of that licence to someone else. Why shouldn't they pay to use the capital that I expended?
I just have some difficulty with the government not recognizing that you cannot arbitrarily do this to people in this country. It seems to me that compensation should be paid for the capital investment you have made in good faith. Expropriation without compensation is what it is.
Mr Wood: I think we should get to voting fairly quickly, but I'd just make a comment again that both of these amendments we're dealing with right now are talking about licensing of land. We're talking about licensing of a resource and we're talking about that that resource will be put back there on a sustainable basis for years and years, hundreds of years to come. That's why we're saying that we're not prepared to support them, because you're talking about licensing of land; this whole act is talking about licensing of the resource.
Mr Brown: Perhaps the parliamentary assistant would like to give us an explanation, then, why anybody pays area charges if you're not talking about licensing of land.
Mr Wood: Area charges is saying that they want this resource that is on that land for their operations at some future date.
The Vice-Chair: Are we ready to vote?
Mr Brown: Well --
Mr Wood: Yes.
The Vice-Chair: All those in favour of --
Mr Brown: I think we need 20 minutes.
The Vice-Chair: You're calling for a 20-minute recess?
Mr Brown: Yes.
The Vice-Chair: The committee stands adjourned until 5:35.
The committee recessed from 1716 to 1736.
The Vice-Chair: This committee is in session again and we are ready to vote on the amendment by Mr Brown, the new section 61.1.
All those in favour?
Mr Brown: Can we have a recorded vote.
The Vice-Chair: A recorded vote.
All those in favour of Mr Brown's amendment?
Ayes
Brown, Hodgson.
The Vice-Chair: Opposed?
Nays
Hope, Mammoliti, Morrow, Wessenger, White, Wood.
The Vice-Chair: The amendment is defeated.
The Conservative amendment being the same, of course it's out of order.
Are there any further amendments -- no. I guess since we don't have a new section 61.1, we can't have anything else.
Section 62: There's a recommendation, I guess, by the government for its own members. Any further comments on, or amendments to, section 62?
Mr Brown: This section calls for the establishment of "forest management boards for such areas as are designated by the minister." I am a little confused as to why the parliamentary assistant is recommending that his own members vote against this section.
Mr Wood: The reason is, the section has been moved up to section 12.
Mr Wessenger: It's already passed.
Mr Wood: Yes.
Mr Brown: Is there an amendment to section 12?
Mr Wessenger: Subsections 12(1) and 12(2).
Mr Brown: Okay. That's my confusion. Thank you.
The Vice-Chair: All those in favour of section 62? Against? The section is struck out.
Section 63: Any amendments, comments? Mr Brown.
Mr Brown: This is a rather simple section which makes perfect sense. The question I have, however --
Interjection.
Mr Brown: The "howevers" are important. What about forest resources renewed on private lands?
Mr Wood: In this particular one we're probably talking about a question of law, and I'll ask Stuart Davidson to answer any questions on that.
Mr Davidson: Your question was, what about crown trees that exist on private lands?
Mr Brown: The renewal of crown --
Mr Davidson: That would depend upon the patent --
Mr Brown: I understand that.
Mr Davidson: -- designating the land in the first place. So this particular clause wouldn't pertain to those.
Mr Brown: So what is the status of those? There are patents where the pine is reserved to the crown, for example, just to use an example, because it's easier. If on those private lands the pine is harvested, the land owner may plant new pine. Does that remain the property of the crown or the property of the land owner?
Mr Davidson: I would like to qualify the answer, and I'm not trying to be difficult, as it would depend upon the patent. Case law seems to indicate, and I'm thinking of a case -- excuse me, I'll obtain the case for you and give it you, or I'll ask the parliamentary assistant to give it to -- that came about four or five years ago and it said that regenerated pine remained the property of the crown.
The Vice-Chair: Okay?
Mr Brown: I guess the explanation is okay. I'm just wondering about the logic of the explanation. If I were the proud owner of land with pine on it reserved to the crown, then what you are encouraging me to do is to plant another species on that land even though it may be more appropriate to pine. It's probably a policy question rather than a legal one.
The Vice-Chair: I don't hear too many answers. Perhaps we're ready for the vote. Mr Hodgson?
Mr Hodgson: I've a similar question to Mr Brown's. I've received a lot of calls from people who are concerned that this section would allow for the pine to be switched to a different type of tree. I just want to know if that's correct or if that would take precedence in the patent, but on the land would dictate what's a crown resource on that private land.
For instance, if there's a patent on pine that says the crown is due stumpage fees on the pine on that land that's privately owned, and somebody regenerates that with a different type of tree, for instance an oak, does the crown have any right to that new type of tree that's been regenerated after the pine was cut?
Mr Davidson: I don't want to sound like I'm going to be equivocal, but it does depend on the patent. If the patent was to specify --
Mr Hodgson: Right, so it's specified in the patent.
Mr Davidson: -- a specific tree or a species of tree, and you were to grow a different species of tree, then I would have difficulty seeing how the crown could assert any kind of interest in that tree.
Mr Hodgson: That answers the question. That's been a concern to some people who phoned.
The Vice-Chair: Okay. Ready to vote?
Mr Brown: If I can be clear, the crown policy is to substitute species on private lands, because that's the effect of believing that the pine in perpetuity, even though it is I as a land owner who have regenerated it, still belongs to the crown. I would have done all the work on private land. As you know, there is, pending today's announcement, virtually no incentive to do any kind of reforestation since the government, in its wisdom, decided to take all the forest rebates, tax rebates, away from private forest owners. You are now, if I understand this correctly, saying to people what you should do is to plant a different species.
Mr Wood: What you're talking about is private land, and here we're dealing with crown lands and crown forests.
Mr Brown: But we're not, and you know that. You know that this act applies further than just crown lands. We've had this discussion. We had representations in North Bay, we had representations across the province about the fact that trees reserved to the crown in old patents are affected by what happens in this act -- the stumpage fees, for example.
The government doesn't seem to know what crown land is. They don't seem to understand that private land is impacted, that private manufacturing is impacted. They define crown land as whatever they choose to define it, depending on which section you read, and that is more troublesome from the opposition's point of view.
This act does affect what happens on private land in those cases, and there are numerous cases particularly in the Thunder Bay area, particularly in the Kirkland Lake-Timmins area. There are large tracts of property that have timber rights reserved. It does affect them.
Mr Wessenger: If I can point out, there is a definition of "crown forest," which indicates it's "on land vested in Her Majesty in right of Ontario." So "crown forest" would not apply to private land.
Mr Brown: Yes, it does. I'm thankful for that clarification, but it's wrong. The crown land doesn't just mean crown forest on crown land; it doesn't even include all crown forests.
Mr Wessenger: But what's referred to in section 63, if I might indicate, is crown forests.
The Vice-Chair: Perhaps you could indicate who wants to speak. Mr Wessenger, you wanted to.
Mr Wessenger: I just wanted to indicate that it's clear to me that "crown forest" is defined, and this refers to crown forest in section 63. So all that is recovered in section 63 is "All forest resources...in a crown forest," which means on land that is vested in Her Majesty in right of Ontario.
Mr Brown: Exactly.
Mr Hodgson: Maybe the parliamentary assistant could shed some light on that.
The Vice-Chair: I'm sorry, but who wants to speak next here?
Mr Wood: Under section 63, you're talking about renewed resources and you're talking about one sentence, "All forest resources renewed in a crown forest are property of the crown." We've had the explanation from a legal point of view and I don't know what further we can add to the debate than calling for the vote.
Mr Brown: To the parliamentary assistant, is the government preparing an amendment to deal with questions of maybe not forests, but crown trees on private land? Those are crown resources too. They belong to the people of Ontario.
Mr Wood: When this legislation was introduced, I know the question came up from the Conservative caucus, "What plans do you have out there for private land?" The ministry indicated that this would be dealt with, that a template or a plan would be put in place for that.
Mr Hodgson: We're still waiting.
Mr Brown: That's this fall and we're waiting.
The Vice-Chair: You wanted to speak?
Mr Hodgson: No. I'm ready for the vote on this, but I'll need 20 minutes for the vote.
Mr Mammoliti: I can't believe this. Why? Because you can't find your members?
The Vice-Chair: Are we ready for the vote then? Are we ready to vote on section 63?
Mr Wood: Yes.
Mr Hodgson: I'll need 20 minutes.
The Vice-Chair: This committee stands adjourned until the next time it shall meet.
The committee adjourned at 1749.